The three Georgia Republicans accused of a litany of crimes for falsely signing documents claiming to be the state’s “duly elected and qualified” presidential electors were just following federal law for a contested election, their lawyers said Wednesday.
David Shafer, Shawn Still and Cathy Latham are among the 19 people indicted under a massive election conspiracy racketeering case in Fulton County stemming from Donald Trump’s failed effort to overturn his 2020 presidential election defeat.
Among the buckets of allegations in the 98-page indictment, Shafer, Still and Latham are accused of making false statements, forgery and criminal attempt to commit filing false documents for their role in signing paperwork that claimed Trump won Georgia’s Electoral College votes.
The three are seeking to move their criminal cases to federal court, where a potential jury pool would be larger and slightly more conservative, and their attorneys argued in court Wednesday that they met the three-pronged test that governs when and how cases can be removed to the federal jurisdiction.
Craig Gillen, a lawyer for former Georgia GOP Chairman David Shafer, said that the elector nominees from both parties were “contingent” until Congress decided which slate to accept because an election contest filed by Trump and Shafer was not resolved by a Dec. 8, 2020 “safe harbor” deadline, adding that the Republicans “did their duty” by meeting and preserving what they said were legal rights in case the election challenge was successful.
Gillen said it was too easy to use the words “fake,” “sham,” and “impersonated” when talking about his clients “without digging into what the law says.”
The Republicans’ lawyers argued that state law only covered the presidential elector process by outlining how they could be appointed, whereas federal law governed electors from that safe harbor moment onward, ergo the 16 Republicans were acting as federal officials and those charged should have their cases heard in federal court.
Attorneys also cited the 1960 Hawaii presidential election results, where both parties sent electors to Congress because the results were not certain at the time the Electoral College votes were cast.
But prosecutors with the Fulton County District Attorney’s office called the argument that the so-called fake electors were federal officials “nonsense,” “not grounded in fact or law” and “baffling” in Wednesday’s hearing.
Anna Cross with the DA’s office said that the 16 Republicans that met at the Georgia State Capitol while the Democratic electors cast their legitimate Electoral College votes were “not presidential electors, not electors at all” and that after the election was counted thrice and certified two different times they should have known that Trump was not the winner.
Cross added that if somehow Trump’s election contest – which she said was procedurally deficient – was successful, the remedy would have been a new election and not flipping the results into Trump’s favor.
As to the Hawaii comparison the defendants’ attorneys pointed to as precedent, Cross said the facts were different: Hawaii’s results were in the middle of a recount at the time of the Electoral College vote, whereas Georgia’s results were already counted.
This was the third removal hearing in recent weeks, following Monday’s hearing with former DOJ official Jeffrey Clark and last month’s hearing featuring former White House Chief of Staff Mark Meadows.
Judge Steve Jones has not yet ruled on Clark’s case, while denying Meadows’ request, finding that the actions he was accused of were not part of his job duties and outside the scope of federal protections.
This story comes to The Current GA through a reporting partnership with GPB News, a non-profit newsroom covering the state of Georgia.