Arizona fake electors case: It will likely be weeks before ruling on dismissal

A Maricopa County Superior Court judge spent three days hearing arguments over whether he should dismiss the case against a group of defendants who are accused of trying to undermine the results of the 2020 presidential election.

An Arizona grand jury indicted 18 individuals in April, including the 11 fake electors, who stand accused of signing a document sent to Washington that falsely claimed former President Donald Trump defeated Joe Biden in Arizona in 2020. The indictment, which also names other individuals accused of coordinating the effort, charges the defendants with felony fraud, forgery and conspiracy.

Attorneys for defendants – including Rudy Giuliani, former Trump White House Chief of Staff Mark Meadows and state Sens. Jake Hoffman and Anthony Kern – spent two days arguing the defendants should be immune from prosecution.

That’s because Arizona’s anti-SLAPP law prohibits litigation designed to stifle a political opponent’s constitutional rights. The law had applied only to civil cases until Republican lawmakers expanded it to cover criminal prosecutions in 2022.

But Assistant Attorney General Nick Klingerman told Maricopa County Superior Court Judge Bruce Cohen that the activity the fake electors are accused of committing – signing a fraudulent document with the intent to change the outcome of the election – is not protected by the anti-SLAPP law. He argued the law only applies when the prosecution is used as a pretext to penalize individuals engaging in otherwise lawful activity.

“Sending false ballots to Congress with intent to defraud is no different than throwing a rock through the window of Congress on January 6,” Klingerman said. “Neither is protected speech, neither is lawful, and this prosecution does not involve the lawful exercise of speech.”

That runs counter to arguments made by defense attorneys, who claimed the defendants – who they refer to as “alternate electors” – only signed the fake elector document as a contingency plan in the event one of the legal cases challenging the result of the 2020 presidential election was successful. They say all of the alleged activity cited by prosecutors amounts to activity protected by the First Amendment, including the rights to petition the government and practice free speech.

“I think clearly there's [proof] that the actions of the Attorney General, the Democrat Attorney General Mayes, were designed to deter my client, to suppress his ability to exercise his constitutional rights,” said Mike Bailey, an attorney for Giuliani.

Klingerman claimed that argument didn’t hold water, citing messages and public statements made by defendants about their intent. That includes private messages indicating some defendants were still seeking to convince Vice President Mike Pence and other officials to accept the fake elector slate even after those lawsuits failed.

Cohen, who is charged with handing down the first legal decision on the anti-SLAPP law since lawmakers expanded it in 2022, said he was concerned that some of that evidence included is based on statements the defendants made, which could be considered speech protected by the First Amendment.

“Mr. Giuliani had every right to hold a fake hearing at the Hilton on November 30 and say that thousands of people in Arizona fraudulently voted in the election,” Klingerman said, referencing an event Giuliani hosted in Phoenix in 2020 promoting false voter fraud claims. “But what he did not have the right to do was make those statements with the intent to commit fraud, and that's what he is charged with.”

Beyond the electors’ motivations, the attorneys also sparred over Attorney General Kris Mayes’ reasons for bringing charges and whether that constitutes good cause to dismiss the case.

Attorney Dennis Wilenchik, representing former U.S. Senate candidate Jim Lamon, claimed Mayes’ statements on the campaign trail about the fake elector case indicate the prosecution was politically motivated.

The case “reeks with political vengeance and retribution,” Wilenchik said.

But Klingerman, the assistant attorney general, rejected that argument, saying Mayes only promised to “investigate” the fake elector case before taking office. He said it’s not unusual for political candidates to make similar statements when seeking office.

Mayes has also emphasized that an independent grand jury ultimately handed down the indictment in the case, arguing that proves that political motivations did not taint the indictment.

“These indictments were issued by an independent grand jury composed of ordinary Arizonans who carefully reviewed the evidence and found that there was sufficient cause to charge the defendants with the alleged crimes,” Mayes said in a statement.

The argument that the grand jury indictment could preempt the anti-SLAPP protections approved by Republican lawmakers in 2022 drew some skepticism from Cohen.

“Do I just deny this, saying, 'Well, the grand jury has spoken, folks, on this case?’” the judge said.

Republican attorney Kory Langhofer, who represents the Republican lawmakers who passed the law, said the attorney general’s interpretation is incorrect.

“Obviously, the statute is designed to cabin prosecutorial power,” Langhofer said. “And their interpretation of it would mean that it essentially has no effect at all.”

Cohen gave the parties until Sept. 6 to file any final arguments over the motion to dismiss the case, and it will likely be weeks before he issues a decision.

If the judge allows the case to move forward, it is scheduled to go to trial in January 2026.