Nevada’s 2020 fake electors may not yet be in the clear, former US attorney says

By Casey Harrison (contact)

Tuesday, July 25, 2023 | 2 a.m.

Fake electors may have breathed a collective sigh of relief earlier this year when Nevada Attorney General Aaron Ford determined they broke no state laws with their scheme to overturn the results of the 2020 presidential election.

The same couldn’t be said for their cohorts in Michigan, who were charged last week by state prosecutors there.

But the Nevadans’ potential legal troubles aren’t necessarily behind them, a legal expert said.

Federal prosecutors could still press charges against the group of Nevada Republicans who tried to override the state’s results in the 2020 presidential election in an effort to keep former President Donald Trump in office, said Barbara McQuade, a former U.S. attorney and law professor at the University of Michigan .

Republicans in Michigan, Nevada, Pennsylvania, Georgia, New Mexico, Arizona and Wisconsin are accused of hosting phony ceremonies in late 2020 to certify the states’ electoral votes in favor of Trump despite Joe Biden’s victory in each. The groups sent phony certificates claiming to be their states’ duly elected presidential electors to the National Archives, attempting to award their electoral votes to Trump. Although the certificates were ignored, the coordinated effort has prompted federal investigations, including by the House committee that investigated the Jan. 6, 2021, insurrection at the U.S. Capitol.

The fake electors had no legal standing to meet, which may open them up to federal charges, said McQuade, who was an Obama-era appointee as the U.S. attorney for the Eastern District of Michigan.

“I think it’s quite possible that any or all of the fake electors could be charged federally,” said McQuade, who noted, however, “it may be that (special counsel) Jack Smith sees them as too low level and wants to focus more on organizers than on those who actually signed their names. But there may be some people at an organizational level even within the states who could end up being charged.”

Trump, who already is facing federal charges related to the mishandling of classified documents after he left office in 2021, indicated last week that he expected to also face additional charges, saying he was notified by Smith that he was the target of another Justice Department investigation.

In June, Nevada Republican Party Chairman Michael McDonald and GOP national committeeman Jim DeGraffenreid — both of whom were among the six who signed on as fake Nevada electors favoring Trump — were offered limited immunity in exchange for testimony about the scheme to a federal grand jury deciding whether to indict Trump over his efforts to overturn the 2020 election.

But just because they were offered immunity, McQuade said that didn’t mean charges couldn’t come further down the line. It could also depend on which type of immunity McDonald and DeGraffenreid were offered, she added.

“Sometimes people are given immunity just about what they are testifying to,” she said. “For example, I won’t use anything against you, anything you tell me, but I already know that you did this thing. So you can still be charged for your own conduct, but the prosecutor just might not be able to use it against you.

“But sometimes, though, someone who is a very small fish and gives information about a very big fish just gets a pass altogether because they’re just not worth the effort,” McQuade continued. “What they did was nominal, and the amount of cooperation they’re able to provide has great value.”

The grand jury reportedly heard testimony about efforts to stop the transfer of power from Trump to Biden after the 2020 election. Smith’s investigation into those efforts and the insurrection are separate from his probe that resulted in Trump’s indictment in Florida in connection with his handling of classified documents.

When questioned last year by a U.S. House committee investigating the Jan. 6 attack on the Capitol by Trump extremists, McDonald and DeGraffenreid previously invoked Fifth Amendment rights.

The committee in December released a batch of 34 transcripts, all of which showed witnesses repeatedly preventing parts of the panel’s inquiry from advancing by invoking their Fifth Amendment rights. In an 80-page transcript of his testimony to committee members, McDonald used the response nearly 300 times.

In May of this year, Ford told state lawmakers his office was unable to bring charges against the six involved in Nevada’s fake elector scheme, as no such law prohibited it. Legislators this year passed a bill that would have made it a felony to be involved in a fake elector scheme, but that measure was vetoed by Gov. Joe Lombardo, a Republican.

“As you all know, I have been silent on Nevada’s fake electors, except to say that the matter was on our radar,” Ford testified to lawmakers May 11, adding his office had been in contact with federal investigators. “With it on our radar, we ascertained that current state statutes do not directly address the conduct in question.”

That’s not the case in Michigan, where Attorney General Dana Nessel, a Democrat, last week announced 16 fake electors would face eight criminal charges, including forgery and conspiracy to commit election forgery. The charges come with a maximum penalty of 14 years in prison.

“The false electors’ actions undermined the public’s faith in the integrity of our elections and, we believe, also plainly violated the laws by which we administer our elections in Michigan,” Nessel said in a statement.

While Michigan does not have any state laws prohibiting individuals from acting as fake electors, Nessel filed charges of either forgery, conspiracy to commit forgery or “uttering and publishing” a falsified document against the fake electors.

Asked if Ford would reevaluate the case in the fake elector scheme given the charges in Michigan, Ford’s office declined to comment and deferred to his testimony before state lawmakers in May.

McQuade said similar charges could be filed in most any state.

“The charges that Attorney General Nessel used were not broad charges, not specifically tailored to a fake elector scheme,” McQuade said. “It would seem that most states (including Nevada) have comparable laws. Certainly, the facts are different in every state and the laws are different in every state, but it’s not like Michigan had some tailor-made law making it a crime to submit fake electors.”

But McQuade said prosecutors would only have a case if they can prove those alleged to have participated knowingly broke the law.

“I would imagine proving their intent will be key to all of this,” McQuade said. “If they said they just did this in good faith, that would be one thing. But I imagine she (Nessel) has evidence showing they did it in bad faith.”