When Republican lawmakers in Arizona convened in December 2020 to forward an alternate slate of electors to Congress in a bid to overturn the election of Joe Biden, they were acting on the advice of a little known conservative constitutional scholar with ties to American Legislative Exchange Council, or ALEC, and Federalist Society member.
The role played by Rob Natelson, a former University of Montana law professor and Federalist Society member who serves on ALEC's board of scholars, in guiding the development of the alternate electoral slate in Arizona has been previously reported, but has received little attention to date.
The Select Committee to Investigate the January 6th Attack on the United States Capitol recently issued subpoenas to alternate electors in seven states, including Nancy Cottle and Lorraine B. Pellegrino, two of the 11 electors from Arizona. The subpoenas compel Cottle and Pellegrino to produce documents relevant to the investigation by Feb. 11 and to appear for deposition on Feb. 16. Signed by the committee chairman, Rep. Bennie Thompson (D-Miss.), the subpoenas notified Cottle and Pellegrino that the committee is "seeking information about your role and participation in the purported slate of electors casting votes for Donald Trump and, to the extent relevant, your role in the events of January 6, 2021."
Two state attorneys general have referred the alternate electoral slates to the US Justice Department for prosecution. After evaluating whether to the bring state charges against the alternate electors in her state, Michigan Attorney General Dana Nessel said she referred the matter to the US Attorney's Office in the Western District of Michigan on Jan. 13.
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"This is part of a much bigger conspiracy, and our hope is that the federal authorities at the Department of Justice and United States Attorney General Merrick Garland will take this in coordination with all the other information they've received and make an evaluation as to what charges these individuals might face," Nessel told MSNBC's Rachel Maddow. "I can think of forgery of a public record for the purpose of defrauding the United States or conspiracy to commit an offense to defraud the United States."
New Mexico Attorney General Hector Balderas has also reportedly referred the matter to federal prosecutors.
Deputy Attorney General Lisa Monaco confirmed that the US Justice Department is reviewing what she termed the "fraudulent elector certifications" during a Jan. 25 interview with CNN.
"Our prosecutors are looking at those, and I can't say anything more on ongoing investigations," she said.
Chairman Thompson said in a formal statement accompanying the subpoenas that the Select Committee "is seeking information about attempts in multiple states to overturn the results of the 2020 election, including the planning and coordination of efforts to send false slates of electors to the National Archives. We believe the individuals we have subpoenaed today have information about how these so-called alternate electors met and who was behind that scheme."
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Kelly Townsend, then a state senator-elect and now a candidate for Congress, described Rob Natelson's role in advising the Arizona lawmakers on their powers over the outcome of the presidential election in an interview with Trump-friendly podcaster JD Rucker on Dec. 17, 2020.
"You have a plan that you've initiated to be able to take Arizona's electors — the alternate electors, the GOP electors — and have them count," Rucker said, introducing Townsend. "Is that a fair assessment of what you've initiated?"
Claiming that the Arizona election was in "dispute" and that there were "some serious allegations that need to be looked at," Townsend told Rucker that 21 sitting lawmakers and eight incoming lawmakers had "signed on to a resolution stating that we wish Congress to support the alternate slate and to not award any electors until all of these irregularities and accusations are investigated and resolved."
Later in the podcast, Townsend said, "I want to mention — I want to give a shoutout to attorney and scholar and professor Rob Natels [sic]." She added, "When he tells us that we have the ability to do this, I think that's who I'm going to listen to, as far as what we can and cannot do. He advised on the language of the resolutions, so we're very happy to have that."
Natelson's advice to the Republican lawmakers has also been confirmed by Bret Roberts, who was serving in the Arizona House of Representatives at the time. Arizona Daily Star columnist Tim Steller reported in a column originally published on Dec. 9, 2020 that Roberts told him that the state lawmakers communicated with Natelson. Steller's reporting — based on Roberts' account — indicates that Natelson advised the Republican lawmakers that they had the power to call themselves into session to deliberate on an election question, and also to overturn Arizona's system for assigning electors — both by a simple majority.
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Townsend appears to have backed up Roberts' account on the first count.
"So, some really smart people — way smarter than I am — have told us that we are not under the Arizona constitution and that we can bring ourselves in with a simple majority," she told Rucker during the Dec. 17, 2020 interview, just before citing and praising Natelson.
Natelson made the same points during an interview with Mitch Kokai, a political analyst with the conservative John Locke Foundation in North Carolina, on Nov. 16, 2020.
State legislatures are granted "significant powers" by the US Constitution, he said.
"When they exercise those powers, such as deciding how electors are chosen, they get their powers directly from the Constitution — the US Constitution; they don't get it from the state constitution," Natelson said.
He continued: "The legislature can literally call itself into session and then choose the electors itself."
Natelson's role in advising the Arizona Republican lawmakers was also previously reported by the Colorado Times Recorder, which cited a Telegram post by Townsend in the summer of 2021, while she was promoting the bogus Arizona audit.
"I wanted to give a shoutout to Rob Natelson, our country's premiere Constitutional scholar who educated the Legislators in Arizona on the plenary power we possess in elections, our ability to do the audit, and our responsibility to finding the truth, all at no cost," Townsend wrote.
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Natelson could not be reached for comment for this story, and a voicemail for him at the Independence Institute in Denver, where he is employed as senior fellow, went unreturned.
In a response to the Colorado Times Recorder last June, Natelson acknowledge communicating with the Arizona lawmakers, but suggested the guidance he provided was far more constrained than what Townsend and Roberts described in their accounts of the discussions.
"My communications with the [Arizona] legislature were limited to clarifying issues of constitutional law," Natelson said, according to the newspaper. "I informed lawmakers that… the Constitution grants the state legislature power to determine the method of choosing presidential electors. I said that they should take action only if they thought there were irregularities and if they thought those irregularities might have changed the election result. I don't recall suggesting any particular course of action."
Walter Holton, a former federal prosecutor appointed by President Clinton, said the participants who are most directly implicated in the alternate electors scheme are likely those who signed their names to the false electoral certificates submitted to the Vice President Mike Pence, as acting president of the US Senate; the archivist of the United States; the state secretaries of state; and chief judges in US district courts. The 11 electors in Arizona, which include Arizona Republican Party Chair Kelli Ward and state Rep. Jake Hoffman, voted for Donald Trump while attesting that they were "the duly elected and qualified electors" from the state of Arizona.
State lawmakers who promoted the scheme are also likely culpable, albeit to a lesser degree, Holton said.
"The individuals who signed the documents, are they knowingly attempting to commit a fraud against the United States?" Holton said. "They can come up with whatever excuse they want. [They can say], 'I didn't realize. I didn't know.' That's why you have trials.
"If there are legislators or others who are knowing aiding and abetting this conspiracy, then they are culpable," Holton added. "They're a minor player. They are going to get a reduction, but the crime's the same. Which is a conspiracy to defraud the United States."
As for those who played an advisory role, Holton said culpability largely depends on whether they crossed the line into actually directing the activity.
"I don't think think the person giving the advice has any culpability unless he directed them," Holton said. "If they call him up, and he says, 'Do this, this or this.' If you advise someone to commit what turns out to be a criminal activity, it doesn't matter — it's what the judge says." He added, "There's no law against being stupid."
According to reporting by the Washington Post and CNN, Rudy Giuliani, who peddled a number of outlandish claims of election fraud as Trump's campaign lawyer, coordinated a plan to assemble rival slates of electors in states narrowly won by Joe Biden.
Mark Meadows, Trump's chief of staff, appears to have also been aware of the scheme. A resolution recommending contempt for refusing to cooperate with the Select Committee states that Meadows "received emails regarding apparent efforts to encourage Republican legislators in certain states to send alternate electors to Congress, a plan which one member of Congress acknowledged was 'highly controversial' and to which Mr. Meadows responded, 'I love it.' According to the contempt resolution, Meadows responded to two different emails regarding the alternate electors scheme by saying variously, "We are," and, "Yes. Have a team on it."
It remains unclear whether Natelson communicated with anyone from Trump's team while advising the Arizona lawmakers. But in comments to the "Talk Back" show on KGVO radio in Missoula, Mont. on Dec. 7, 2020, Natelson seemed to criticize Trump's campaign legal team.
An article recapping Natelson's remarks paraphrased him as saying "the president's legal team has been making claims they cannot fulfill," while directly quoted him as saying, "What they've been doing is kind of over-promising."
Natelson's support for the principle that presidential electors are not bound by the popular vote in their respective states predates the 2020 election. In a 2018 blog post, Natelson wrote that the record of the Constitutional ratification debates in Philadelphia in 1787 "suggests that the ratifiers and the voting public understood presidential electors were to exercise their own judgment when voting."
Soon after the 2020 election, Natelson began publicizing his novel views on state legislatures' powers to remedy what he described as an election "disaster" based on his aversion to "mail-in voting extending over weeks."
"If a legislature becomes convinced its returns are hopelessly muddled or corrupt, it may arrange a new way of choosing the presidential electors," Natelson wrote in a column for the Epoch Times on Nov. 8, 2020. Under such a circumstance, Natelson opined that state legislatures have two options. One would be to "call a new statewide presidential election for a single day," while the other would be for state legislatures to "choose the electors by legislative vote on a single day."
Speaking with Mitch Kokai at the John Locke Foundation on Nov. 16, Natelson argued that state legislatures in six states narrowly carried by Joe Biden — almost all of them Republican-controlled — were duty bound to act.
Natelson told Kokai said that the Constitution provides "that if, for some reason, you don't have firm results, nobody's really selected on November third, then the state legislature can decide how to choose the candidate.
"The state legislatures have to stand up and determine how serious the confusion is in their states," he continued. "If it is serious enough so that we don't know who's been elected in that state, then the state legislature has to deal with it."
