Lawyers for three Georgia Republicans who face charges for their involvement in the "fake electors" scheme to overturn the 2020 presidential election argued at a Wednesday hearing that their cases should be moved from state to federal court.
David Shafer, Shawn Still and Cathy Latham all say their charges should be moved out of state court because they were acting as "contingent presidential electors," under Trump's direction and pursuant to the U.S. Constitution and federal law, CNN reported.
The three defendants were a part of a group of 16 Georgians who submitted to the U.S. Senate and the National Archives a false certification attesting that Trump had won Georgia in the 2020 election.
They "unlawfully falsely [held] themselves out as the duly elected and qualified presidential electors from the State of Georgia, public officers, with intent to mislead" officials, according to the indictment.
"The concept of 'contingent electors' or 'contingent federal electors' is not contained in federal laws or the U.S. Constitution as it pertains to the Electoral College," V. James DeSimone, a California civil rights attorney, told Salon. "Since no such role exists, they can call themselves whatever Trump wanted them to be called but, legally, their argument is dead on arrival."
Shafer, Still and Latham are charged with impersonating a public officer and forgery, among other crimes. Their lawyers are now arguing that since the three defendants were acting as federal officials, they should be treated as such.
Should the court find that they were functioning as federal officials, the three would presumably have their trials moved from Fulton County Superior Court to federal district court, which would also allow them to qualify for specific immunity protections, their attorneys argue.
Legal experts who discussed the matter with Salon suggested that these motions for removal will likely be dismissed, saying they are factually unsupported and disconnected from the law.
"Among other crimes, these individuals are charged with impersonating actual legal electors," said Temidayo Aganga-Williams, a white-collar partner at Selendy Gay Elsberg and former senior investigative counsel for the House Jan. 6 committee. "Their effort to remove their cases to federal court — a protection given to federal officials doing their jobs — is like someone charged with impersonating a police officer asking for legal protections given to actual police officers."
He pointed to U.S. District Judge Steve Jones rejection of a request from Mark Meadows, Trump's final White House chief of staff, to move his case from state to federal court and former Justice Department official Jeffrey Clark's "weak attempt" to defend his pending motion.
Those instances suggest "that this attempt by these fake electors is an uphill battle with little chance of success," Aganga-Williams said.
Both Meadows and Clark have attempted to transfer their cases to federal court by invoking a federal law that calls for the removal of criminal proceedings brought in state court to the federal court system when a federal official is acting "under color of their federal positions."
"I expect Judge Jones will find these fake electors' actions were taken on behalf of the Trump campaign in an attempt to impact state election procedures, not on behalf of the federal government," Aganga-Williams added.
DeSimone agreed, saying he does not believe "these folks have a leg to stand on," especially since Meadows also failed in his attempt to transfer his case to federal court.
"These folks are yet again wishing for something they want to happen, and will be disappointed," he added. "The arrogance of these individuals [who believed] they could circumvent democracy because Trump told them they could is unprecedented."
During the hearing, attorneys for the defendants objected to the use of "fake" or "sham" to characterize their clients' roles as supposed presidential electors, arguing that their clients had appointed by the state's Republican party as contingent electors and simply "did their duty."
Prosecutor Anna Cross challenged the defense attorneys' arguments, stating that their stance lacked factual and legal basis.
She disagreed with the claim that the defendants qualified as "federal officials" in any sense, saying that there was no supporting evidence to indicate that the defendants were acting on behalf of anyone, and emphasizing that there was "not a federal official in the bunch."
"There's no chance a judge will give them what they want. They are asking the judge to grant them relief based on a false premise," DeSimone said. "There is a protocol for electors to be appointed by the states based on the results of an election. These pseudo-electors knew they were chosen because of their allegiance to the loser of the election."
Courtroom tensions briefly escalated when Craig Gillen, one of Shafer's attorneys, alleged that the prosecutors were singling out the electors due to their support for Trump, which he described as a "sad state of affairs in this country."
Americans who support the former president in any way should "buckle up," Gillen said, because "you're in the danger zone, you're going to get indicted by this crowd," according to CNN.
"That's an accusation that, 100 percent, the state rejects," 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."
Shafer, Still and Latham were among the 18 co-defendants indicted with former President Donald Trump on felony charges in connection with efforts to subvert the results of the 2020 election in Georgia. Fulton County District Attorney Fani Willis charged all 19 defendants with violations of Georgia's Racketeer Influenced and Corrupt Organization Act.
The three now argue that their cases qualify for removal because they were acting as federal officials while casting their so-called electoral votes (which were unofficial and not counted by Congress) for Trump on Dec. 14, 2020.
"The fake GOP electors are doing something that I expect we will see more and more in the criminal cases against Trump," said Aganga-Williams. "They are pointing to the former president as the person in charge and, in effect, the person ultimately responsible."
