Lawyers for Arizona’s so-called fake electors claim prosecutors misled the grand jury that indicted the defendants one year ago for allegedly attempting to undermine the 2020 presidential election.
The attorneys asked Maricopa County Superior Court Judge Sam Myers to remand the case back to the grand jury, which would effectively require prosecutors to obtain new indictments to move the case forward.
A grand jury is a collection of citizens convened to consider whether prosecutors have enough evidence to bring charges against an individual accused of breaking the law. The jury can hear from prosecutors and witnesses, but there are no defense attorneys present or a judge overseeing the proceedings.
Lawyers for the defendants argued prosecutors inappropriately influenced the grand jurors by referring to the accused as “fake electors” hundreds of times over the course of several months.
“It’s the same as basically saying, ‘ladies and gentlemen, they’re guilty,’” said attorney Stephen Binhak, representing former state Republican Party official Tyler Bowyer.
Several of the defendants have called themselves “alternate” electors.
“My client was a true elector in that he was appointed by the Republican Party chairwoman to serve as an elector,” said attorney Lacey Cooper, who is representing former U.S. Senate candidate Jim Lamon.
Lamon and some of the other defendants are accused of attempting to subvert the results of the 2020 presidential election by submitting a fraudulent document to Washington claiming President Donald Trump defeated former President Joe Biden in Arizona’s presidential election in 2020.
The Republicans who signed that document were, in fact, selected by the Republican Party of Arizona to serve as electors in the event Trump won the election. However, prosecutors have repeatedly argued they were “fake” electors, because Biden, not Trump, won Arizona’s election that year.
“Sending false ballots to Congress with intent to defraud is no different than throwing a rock through the window of Congress on January 6,” Nick Klingerman, criminal division chief for the Arizona Attorney General’s Office, told a judge last year.
But the defendant’s attorneys argue that is not the case, claiming that they were relying on a viable legal theory when they sent their elector document to Washington. They’ve long claimed that document was a contingency in the event court cases fueled by now-debunked claims of widespread voter fraud found Trump had actually won the election.
Binhak, the defense attorney, has argued the federal Electoral Count Act allows for individuals to submit that “alternate” slate of electors. And he claimed prosecutors failed to adequately outline that theory for grand jurors.
“It is our position, judge, that here the state failed,” Binhak said, arguing the state failed to provide grand jurors testimony from a qualified election expert and that the grand jury wouldn’t have indicted the defendants if it was informed about the legal theory behind their actions.
He said the only way to rectify that error would be to send the case back to a new grand jury.
Prosecutor Krista Wood disagreed.
She said that the defendants are not charged with violating the Electoral Count Act, so the state was not obligated to explain it to grand jurors. And, she said, that federal law provides no protections against prosecution for the state crimes — including fraud and forgery — at issue in the case.
Wood conceded that creating a false elector document in good faith may not be a crime on its own.
“In other words, the mere fact that a document has false information or is fake does not mean a crime occurred, and that's exactly what the state presented,” Wood said.
But, she added, “the defendants acted with the intent to defraud and, therefore, committed criminal offenses.”
Wood also pointed out that Myers, the judge overseeing the case, already rejected the argument that the federal Electoral Count Act supersedes state law, which would mean state prosecutors didn’t have authority to bring the charges in the first place.
In an order issued last month, Myers dismissed that argument and several other attempts to have the case thrown out. A separate motion to dismiss the case under an Arizona law designed to protect First Amendment rights and prevent politically motivated prosecutions is still pending.
Myers said he plans to rule on whether to send the case back to the grand jury as soon as possible.
