Atlanta
CNN
—
Fulton County prosecutors pushed back against what they called “borderline offensive” claims at a court hearing Wednesday against three accused fake GOP voters that their 2020 election subversion case was fueled by an anti-Donald Trump bias had been.
“This is an allegation that the state 100% denies,” said prosecutor Anna Cross, adding that the extortion case “has nothing to do with having an ‘R’ or a ‘D’ next to a person’s name and that Fulton County prosecutors would file charges against Georgians from any political party if they signed fraudulent ballots.
She was responding to comments from a lawyer representing former Georgia GOP Chairman David Shafer, who led the delegation of 16 fake electors and is one of three facing state charges. His attorney, Craig Gillen, sharply rebuked Fulton County District Attorney Fani Willis, accusing her of targeting Republican voters simply because they were “performing their civic duties.”
Gillen lamented 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 are in the danger zone and will be accused by this mob.” .”
Lawyers for the trio of fake voters sat in federal court Wednesday to persuade a judge to move state prosecutions into the federal system. Shafer, Georgia state Sen. Shawn Still and former Coffee County GOP chairwoman Cathy Latham are the latest defendants in the case to attempt this legal maneuver. They have all pleaded not guilty.
If they are successful, they will have a better chance of having their charges dropped, or at least have more favorable terms in court. But things will go uphill. Federal officials can take state cases to federal court, where they can invoke immunity protections for U.S. government employees.
These three were not federal officials in 2020. Instead, they espouse a novel legal theory that they acted as “contingent presidential electors” under Trump’s leadership and in accordance with the U.S. Constitution and federal law that sets out the Electoral College process. Therefore, they were essentially acting as federal officials and should be treated as such, their lawyers argued.
U.S. 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 court to federal court. And Jones was skeptical at a hearing on the same topic Monday for Trump-era Justice Department official Jeffrey Clark.
On Wednesday, he suggested that he believes previous Supreme Court rulings support the fake electors theory that they should be recognized as federal officials because of their role in the Electoral College. Jones asked one of Shafer’s lawyers if they wanted him to “disregard” the Supreme Court’s comments in election-related cases, known as Dicta.
“We do not believe this applies to this context,” said Shafer attorney Holly Pierson.
The judge replied: “There are dictates, and then there are Supreme Court dictates.”
He did not govern from the bench at Wednesday’s three GOP electorate hearings. Jones has not yet made a judgment in the Clark case. Trump is also expected to try to press his case. Meadows has appealed the decision in his case, claiming the judge “ignored precedent” and made “multiple errors.”
Prosecutors in Georgia want the case to remain in state court. Cross criticized the voters’ legal theory, saying it was “creatively” crafted but “not based on facts or law.”
It is a “fantasy” and “nonsense” that the outcome of the presidential election in Georgia was still seriously contested as of December 14, 2020, when voters were required to meet. Trump still had a lawsuit pending, but Georgia’s Republican secretary of state and governor had already certified the final statewide tally, confirming that Trump had lost.
When GOP voters met at the Georgia State Capitol, a Trump campaign official and a Trump campaign lawyer were there. Cross said this reinforced that their meeting was a campaign event – and not linked to the functions of the federal government.
“They were not Justice Department lawyers. They weren’t White House lawyers. “They were campaign lawyers,” Cross said, adding that “there was no federal official in the group” and that the meeting at the Statehouse was “coordinated with the campaign.”
Lawyers for the Republican voters strenuously denied that their clients were “fake” or “sham” voters. Instead, they acted in good faith and cast “conditional” votes for Trump in the event he prevails in his legal battle aimed at overturning the results in Georgia.
“They did their duty … they didn’t pretend … That’s what the Constitution tells them to do,” Gillen said, adding that what they did “was mandated by federal law.”
Still’s attorney, Tom Bever, said the 16 fake voters were “upstanding citizens” and not “gangsters” or “alleged gang members,” according to racketeering charges filed by prosecutors in the case. Bever became emotional as he described how his client “never dreamed he had done anything wrong.”
None of the fake voters attended the hearing at the federal courthouse in downtown Atlanta.
They submitted an affidavit from a law professor specializing in bankruptcy law who argued that they acted “reasonably, properly and lawfully” after the 2020 election. Shafer submitted an affidavit from Brad Carver, who was also a fake GOP voter but was not charged.
After prosecutors objected, the judge said he would accept those submissions but suggested not giving them much weight.
The burden of proof is on Shafer, Still and Latham to convince the judge that they deserve federal protection because they served as electors for the losing presidential candidate. Derek Muller, an election law expert who teaches at Notre Dame Law School, said he believes it will be a “heavy effort” to assert their arguments in court.
“There is ample Supreme Court precedent that presidential electors are not federal officers, but are merely performing a federal function, which they are authorized to do under the Constitution of the United States,” Muller said.
