By Howard Fischer
Capitol Media Services
PHOENIX -- The decision by a judge in Michigan to toss charges against "fake electors'' in that state has could foretell what could happen with an nearly identical case here.
On Tuesday, Judge Kristin Simmons said prosecutors had failed to show that the 16 people who signed paperwork in 2020 declaring that Trump had won the electoral votes intended to commit fraud. And without that, the judge said, the case brought by Attorney General Dana Nessel falls apart.
Strictly speaking, the Michigan ruling sets no legal precedent in the case Arizona Attorney General Kris Mayes brought against 11 Republicans here who signed similar documents certifying, falsely, that Trump had outpolled Joe Biden. Richie Taylor, Mayes' press aide, pointed out they are charged with violating Arizona conspiracy, fraud and forgery laws.
And Mayes, unlike her Michigan counterpart, also brought those same charges against attorneys and associates of Donald Trump who she says also were part of the scheme.
In both cases, though, the indictments named Trump an unindicted co-conspirator.
But the factors cited by the judge in Michigan also are at play here, including that the 16 people charged posed for a picture, something that prosecutors submitted as evidence. The judge, however, wasn't buying it.
"Typically, people who are seeking to defraud or deceive do not gather and make a spectacle of that,'' Simmons said. "That would be weird.''
As it turns out, though, the 11 indicted in Arizona also posed for a photo which was spread by the Arizona Republican Party.
"They're separate cases in separate states,'' Taylor said of any parallels between the charges here and the ones dismissed in Michigan.
"Obviously, they are somewhat connected,'' he said, with the charges in both cases based on what prosecutors argued was a conspiracy to overturn the results of the 2020 election and keep Trump in office. But he declined to comment on what happened in Michigan beyond that.
But there's already something else that is complicating efforts by Mayes to proceed with the charges here.
In May, Maricopa County Superior Court Judge Sam Myers said the case needs to be sent back to the grand jury. He said grand jurors were not given access to the Electoral Count Act of 1887 and did not have that federal law explained to them before they found probable cause to indict those here.
What makes that significant is that federal law specifically addresses the possibility of competing presidential electors from a state and how Congress must handle them.
And that goes to the heart of the defense, both here and in Michigan: the claim that they were not trying to commit fraud but that they were preparing an "alternate slate'' of electors to send to Washington if it turned out that Trump actually outpolled Joe Biden. And there was, at the time, pending litigation over the election results.
The appellate court has set no date to rule on whether a new indictment is necessary. But that delay -- and the likelihood that whichever side loses will seek Supreme Court review -- likely means the case will not go to trial early next year as scheduled.
Taylor said Mayes won't comment on the case here -- or what happened in Michigan -- until that issue with whether a new grand jury needs to be convened is resolved.
The Arizona case charges the 11 GOP electors and others associated with Trump with being part of a scheme to "prevent the lawful transfer of the presidency of the United States, keeping President Donald J. Trump in office against the will of Arizona voters, and depriving Arizona voters of their right to vote and have their votes counted.''
One of the elements in Mayes' claim that there was an intent to defraud is that the certificate signed by the 11 Republican electors is that they actually sent the certificate claiming that Trump won to Congress and the National Archive.
All that, the Arizona indictment says, was part of a larger plan hatched by Trump attorneys and allies to convince Congress and Vice President Mike Pence, who was presiding over the counting of the electoral vote, to refuse to accept the official results reported by Arizona and other states. The goal, according to the indictment was to prevent Biden from getting the necessary 270 electoral votes.
The Michigan electors also sent their documents claiming a Trump win there to Congress.
But Simmons said that prosecutors there had failed to show that the electors knew that the certificate would be used to try to overturn the 2020 election results.
"Right, wrong, or indifferent, it was these individuals and many other individuals in the state of Michigan who sincerely believed, for some reason, that there were some serious irregularities with the election, or with the voting, and that somehow their candidates didn't receive all the votes that was intended for them,'' Simmons said.
She said it wasn't for the court to decide whether there were irregularities.
"But this was their belief and their actions were prompted by this belief,'' Simmons said. "I believe they were executing their constitutional right to seek redress.''
In the Arizona case, however, Mayes contends the reason the electors and others signed the paperwork avowing they were the official electors from Arizona, that Trump had won, and sent that to Washington all is irrelevant.
"Whatever their reasoning was, the plot to violate the law must be answered for,'' she said at the time of the 2024 indictment.
"The scheme, had it succeeded, would have deprived Arizona's voters of their right to have their votes counted for their chosen president,'' Mayes said. "It effectively would have made their right to vote meaningless.
And Mayes said the scheme was based on false claims of widespread voter fraud. The only reason it failed, she said is because member of Congress and Pence ignored it.
There are other parallels between the cases.
Prosecutors had charged 16 electors in the Michigan case. But the case against James Renner, a former state trooper, was dismissed after he agreed to cooperate.
In Arizona, there is a deal to drop charges against Jenna Ellis, one of Trump's attorneys, after she agreed to cooperate with prosecutors.
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