By Marshall Cohen
Atlanta (CNN) — Fulton County prosecutors pushed back against what they called “borderline offensive” claims that their 2020 election subversion case was fueled by anti-Donald Trump bias at a court hearing Wednesday for three indicted fake GOP electors.
“That’s an accusation that, 100%, the state rejects,” prosecutor Anna Cross said, adding that the racketeering case “doesn’t have anything to do with an ‘R’ or a ‘D’… sitting next to someone’s name” and that Fulton County prosecutors would charge Georgians from any political party if they signed fake elector certificates.
She was responding to comments from an attorney representing former Georgia GOP chair David Shafer, who led the delegation of 16 fake electors and is one of the three facing state charges. His attorney Craig Gillen offered a searing rebuke of Fulton County District Attorney Fani Willis, accusing her of targeting the Republican electors for simply “doing their civic duty.”
Gillen decried the “sad state of affairs in this country,” and said Americans who support former President Donald Trump in any way should “buckle up” because “you’re in the danger zone, you’re going to get indicted by this crowd.”
Lawyers for the trio of fake electors were in federal court Wednesday to try to convince a judge to move the state prosecution into the federal system. Shafer, Georgia state Sen. Shawn Still and former Coffee County GOP chair Cathy Latham are the latest defendants in the case to attempt this legal maneuver. They have all pleaded not guilty.
If they succeed, they’ll have a better shot to get their charges dropped, or at least have more favorable conditions at trial. But they’ll face an uphill climb. Federal officials can move state cases into federal court, where they can invoke immunity protections for US government employees.
These three were not federal officials in 2020. Instead, they’re pushing a novel legal theory that they were acting as “contingent presidential electors,” under Trump’s direction and pursuant to the US Constitution and federal law, which spells out the Electoral College process. Thus, they were essentially acting as federal officials and should be treated as such, their lawyers argued.
US District Judge Steve Jones has already rejected a request from Trump’s White House chief of staff Mark Meadows to move his case from state to federal court. And Jones was skeptical at a Monday hearing on the same topic for Trump-era Justice Department official Jeffrey Clark.
He signaled Wednesday that he thinks past Supreme Court rulings undercut the fake electors’ theory that they should be recognized as federal officers for their role in the Electoral College process. Jones asked one of Shafer’s lawyers if they wanted him to “disregard” the Supreme Court’s comments in elector-related cases, known as dicta.
“We don’t think it applies to this context,” Shafer lawyer Holly Pierson said.
The judge responded, “There’s dicta, and then there’s Supreme Court dicta.”
He didn’t rule from the bench at Wednesday’s hearing for the three GOP electors. Jones hasn’t issued a ruling yet in the Clark matter. Trump is also expected to try to move his case. Meadows has appealed the decision in his case, claiming the judge “ignored precedent” and committed “multiple errors.”
Trump election lawsuit was ‘nonsense,’ DA says
Georgia prosecutors want the case to stay in state court. Cross blasted the electors’ legal theory, saying it was “creatively” crafted but “not grounded in any fact or law.”
It was a “fantasy” and “nonsense” that the outcome of Georgia’s presidential election was still being seriously contested by December 14, 2020, when electors were required to meet. Trump still had a pending lawsuit, but Georgia’s Republican secretary of state and governor had already certified the final statewide tally, confirming that Trump lost.
When the GOP electors met at the Georgia State Capitol, they were joined by a Trump campaign official and a Trump campaign lawyer. Cross said this cements that their meeting was campaign activity – and not tied to the functions of the federal government.
“They were not Justice Department attorneys. They were not White House attorneys. They were campaign attorneys,” Cross said, adding, “there was not a federal official in the bunch” and that the meeting at the statehouse was “coordinated with the campaign.”
‘They weren’t fake,’ defense says
Attorneys for the GOP electors aggressively refuted that their clients were “fake” or “sham” electors. Instead, they were acting in good faith to cast “contingent” electoral votes for Trump, in case he prevailed in his lawsuit seeking to flip the Georgia results.
“They did their duty… they weren’t fake … This is what the constitution tells them they have to do,” Gillen said, adding that what they did “was directed by federal law.”
Still’s attorney Tom Bever said the 16 fake electors were “upstanding citizens” and not “mobsters” or “alleged gang members,” as suggested by the racketeering charges that prosecutors filed in the case. Bever got emotional describing how his client “never dreamed that they had done anything wrong.”
None of the fake electors attended the hearing at the federal court in downtown Atlanta.
They submitted an affidavit from a law professor who specializes in bankruptcy law, who argued that they acted in a “reasonable, proper, and lawful manner” after the 2020 election. Shafer filed an affidavit from Brad Carver, who was also a fake GOP elector but wasn’t indicted.
After prosecutors objected, the judge said he would accept these submissions but suggested he wouldn’t give them much weight.
The burden of proof is on Shafer, Still and Latham to convince the judge that they deserve federal protections because they served as electors for the losing presidential candidate. Derek Muller, an election law expert who teaches at the Notre Dame Law School, said he believes it’ll be a “heavy lift” for their argument to prevail in court.
“There’s extensive Supreme Court precedent that presidential electors are not federal officers, but merely exercise a federal function, something the United States Constitution empowers them to do,” Muller said.
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CNN’s Kevin Conlon, Jared Formanek, Fabiana Chaparro,Shirin Faqiri, Morayo Ogunbayo, Jim Rogers and Macie Goldfarb contributed to this story.