Neither Trump’s Election Challenge nor His Electors Were Illegal.
The accusations forming the basis of a federal investigation of former President Donald Trump and his activities relating to the 2020 election do not represent illegal acts, say law experts and analysts on both sides of the political aisle.
These experts also say that Michigan citizens who were charged for acting as Trump-supporting “alternate electors” for the 2020 Electoral College committed no crime.
Challenging presidential election results is nothing new — and was never considered illegal — until the 2020 election.
Controversies and claims of “stolen” elections have occurred and notably marked the elections of 1800, 1824, 1876, 1912, 1960, and 2000.
And 2020 wasn’t the first election in which “alternate” electors played a role in trying to shape the outcome of the election.
Although Michigan’s attorney general filed felony charges on Tuesday against 16 Republicans who acted as alternate electors for Trump, legal precedent indicates that those alternate presidential electors committed to Trump in seven battleground states likely did not commit any crime.
Curtis Hill, a former Indiana attorney general who is a Republican gubernatorial candidate, said going after alternate electors is “nothing more than another attempt to weaponize our justice system against political opponents.”
“Three times now, the Biden Justice Department has tried to silence President Trump and his supporters because they see him as a threat to their power next year,” Hill said, referencing the 2024 presidential election in which Trump is a front-runner to win the GOP nomination.
“These liberal prosecutors are targeting President Trump and anyone who supported him in the 2020 election because they are worried about their own election chances in next year’s election.”
Michael Markey, a Republican congressional candidate for Michigan’s 3rd District, said that the investigation by the state’s Democrat attorney general, Dana Nessel, “should be concerning for all Michiganders across the state.”
“Election integrity is important, but we secure our elections through legislation, not political prosecutions against our opponents,” Markey said.
Even though Nessel is charging 16 people with eight criminal counts, including forgery and conspiracy to commit election forgery, not every state dealing with the so-called “fake” electors has treated them as criminals.
Last year, the Wisconsin Elections Commission decided unanimously against sanctioning 10 Republicans, including one of the commissioners, for claiming to be presidential electors in 2020.
In a letter and legal memo, the commissioners determined that there was no reasonable suspicion that the would-be electors violated any of the laws the commission oversees.
“Wisconsin law does not prohibit an alternative set of electors from meeting,” the commission’s attorneys wrote in the memo.
Former Pennsylvania Attorney General Josh Shapiro, who is now the state’s governor, told The Associated Press that he doesn’t believe there was evidence that the actions of the “fake” electors in his state met the legal standards for forgery.
Nevada’s Democrat attorney general has stated he won’t bring charges, either.
In Georgia, a prosecutor has already cut immunity deals with at least eight of the alternate electors as Fulton County District Attorney Fani Willis investigates Trump’s purported efforts to overturn the election in the Peach State.
Wren Williams, a sitting Republican Virginia delegate who served on Trump’s Wisconsin legal team, said there is nothing illegal about selecting alternate electors.
“Selecting alternate electors is not illegal,” Williams said. “In fact, there is no legal precedent to say alternate electors should be prosecuted for doing their assigned tasks.”
He said Biden’s Justice Department “has its man, but continues in search of a crime” by tapping state attorneys general to “carry on this absurd witch hunt.”
Though some critics may argue the alternate electors were “fraudulent,” an article published by liberal-leaning Slate argues that the loyal Trump electors were “acting on the basis of a well-known precedent, in the face of an even better-known feature of our Constitution.”
The article pointed out that “under our law, any candidate challenging the results of a presidential election must take steps very much like what these electors did.”
The outlet noted that under the U.S. Constitution, states have the power to set the “matter” in which electors are appointed and Congress has the power to say when those electors must cast their votes.
“In close elections, that deadline can create an obvious problem,” the article states. “If the election is still contested in a state at the time the electors are to vote, which slate of electors should vote?”
Because Congress has a strict deadline on when electors are required to cast their votes, both slates of electors have often cast their ballots on the day that Congress chooses to set the vote.
It is a scenario that played out during the 1960 presidential election.
Hawaii was participating in its first presidential election since becoming a state, in a race between Democrat John F. Kennedy and Republican Richard Nixon.
Kennedy had already secured the necessary Electoral College votes to win the presidency, but the Aloha State still gave the win there to Nixon based on a razor-thin 140-vote margin.
Democrats decided to challenge the result, forcing a recount that was still underway on Dec. 19, the federally-mandated date on which presidential electors from around the country were required to cast their votes.
On that day, electors backing Nixon and electors backing Kennedy both signed their own certificates for their preferred candidate. Both signed certificates sent to Washington.
Kennedy ultimately became the winner following the recount, beating Nixon by just 115 votes.
The decision by Hawaii Democrats to deploy alternate electors in that race is being cited as a precedent for other states that took similar steps in 2020. No one sought to indict these electors or prosecute Kennedy over the matter.
Attorney, author, and TV and radio host Mark Levin has argued that an election isn’t over until “Congress says it’s done.”
During an episode of his Fox News’ “Life, Liberty, and Levin,” he pointed out that the “system is built for objections and no election is over until Congress determines it is.”
“Congress is the last check,” he said. “Not the courts, not the ballot boxes.”
Because Congress has the last say, Rep. Jamie Raskin, D-Md., was able to have “objected to a Republican president at one time” and why Rep. Bennie Thompson, D-Miss., objected to the 2004 election results, Levin noted.
When it comes to the issue of the so-called fake electors, Levin said that is “not a crime either.”
“You might not like it,” he said. “You might think it’s weird; you might think it’s unethical; but it’s not a crime.”
That there is seemingly nothing illegal about deploying alternate electors could be why former Trump election challenge lawyer John Eastman is not a target for special counsel Jack Smith’s grand jury investigation of the 2020 presidential election challenge.
Eastman has been credited with coming up with the legal avenues Trump used to contest the 2020 election, including reportedly calling for Vice President Mike Pence to kick the contested Electoral College votes back to the state legislatures to reconsider their support for them.
Eastman’s attorney, Charles Burnham, told Politico that Eastman doesn’t expect to receive a “target letter” since “raising concerns about illegality in the conduct of an election is not now and has never been sanctionable.”
Trump posted on Truth Social that he expects to be indicted by Smith’s grand jury because he received a “target letter.”
Politico reports that investigators have probed Trump’s role in the use of alternate electors.
Two attorneys with direct knowledge of the letter told NBC News that federal statutes are mentioned, including deprivation of rights under color of law, conspiracy to defraud the U.S., and tampering with a witness.
