Election email could aid Fulton DA

Georgia Republicans urged to maintain secrecy about plan to cast fake electoral votes
Georgia Democrat Stacey Abrams speaks to Democrats serving as Georgia's presidential electors before they cast their ballots in the Georgia Senate Chambers at the Georgia State Capitol building in Atlanta, Monday, December 14, 2020.  (Alyssa Pointer / Alyssa.Pointer@ajc.com)

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

Georgia Democrat Stacey Abrams speaks to Democrats serving as Georgia's presidential electors before they cast their ballots in the Georgia Senate Chambers at the Georgia State Capitol building in Atlanta, Monday, December 14, 2020. (Alyssa Pointer / Alyssa.Pointer@ajc.com)

An email showing that the 16 Georgia Republicans who cast sham Electoral College votes for former President Donald Trump in 2020 were directed to operate in secret could have a significant impact on the Fulton County criminal investigation of the state’s last presidential election.

Several legal experts interviewed by The Atlanta Journal-Constitution said the email, first reported by The Washington Post and CNN late Monday, could help Fulton prosecutors more easily establish criminal intent of those “alternate” electors — and potentially others closer to Trump.

Intent is a prerequisite for securing criminal charges in court.

“I would think a prosecutor and a jury would find that compelling evidence that bears on the former president’s state of mind,” said Brandon Bullard, an Atlanta-based appellate attorney. “The inevitable question is ... what about an election should be secret?”

The email is dated Dec. 13, 2020, the day before electors met at the state Capitol. In it, Robert Sinners, the Trump campaign’s Georgia elections operation director, told the Republicans that he needed their “complete discretion in this process.”

“Your duties are imperative to ensure the end result — a win in Georgia for President Trump — but will be hampered unless we have complete secrecy and discretion,” he wrote, according to CNN and the Post.

Sinners also extended the secrecy to Capitol security guards and the media, and instructed the electors to instead say they were meeting with one of two pro-Trump state senators: Brandon Beach, R-Alpharetta, or Burt Jones, R-Jackson.

Under Georgia law, the state’s presidential electors must perform their duties at the state Capitol. That’s where Democrats cast their ballots for Joe Biden, who defeated Trump by less than 12,000 votes.

Shortly before that occurred in the Senate chamber, Republicans gathered behind two heavy wooden doors in a nearby conference room to anoint their shadow slate of electors. At the time, Trump’s legal team was contesting election results in court.

An aide standing outside the door falsely told an AJC reporter that a group of “educators” were meeting. But it quickly became clear what was happening inside.

After the hourlong ceremony, GOP Chairman David Shafer, who also served as a Republican elector, told reporters that “we were asked by the president’s lawyers to hold this meeting to preserve his rights under the pending litigation.”

Sinners’ email apparently surfaced in conjunction with the Justice Department’s examination of the false electors, who were drafted in seven swing states won by Democrat Joe Biden and filed phony certificates to the National Archives. Federal investigators have already interviewed several Georgia Republicans who ultimately refused to join the false electors.

The email is also of keen interest to the congressional Jan. 6 committee, which is holding its first hearing Thursday.

Ditto for Fulton District Attorney Fani Willis, who recently acknowledged that her special purpose grand jury is investigating the electors. Prosecutors have interviewed at least two of the 16 Georgia Republicans who participated, according to two sources with knowledge.

Georgia State University law professor Clark Cunningham said prosecutors could possibly use the email as evidence that the electors and those who organized them knew what they were doing was wrong.

“The whole thing says, ‘this is to be achieved by deception,’” he said.

Legal experts said the electors may have violated state laws barring forgery, criminal solicitation to commit election fraud or conspiracy to commit election fraud, among others. The latter could implicate some of Trump’s closest allies, including his personal attorney Rudy Giuliani, who reportedly quarterbacked the effort to recruit alternate electors.

But in order to charge anyone for those crimes, prosecutors must ultimately convince 12 jurors with the highest burden of proof, beyond a reasonable doubt, that the perpetrators knew what they were doing was unlawful.

That’s difficult to do.

Prosecutors demonstrate intent by assembling enough direct and circumstantial evidence for jurors to infer criminal intent.

Trump’s defenders are likely to argue that the former president really believed there was largescale fraud in Georgia — and was simply asking officials like Secretary of State Brad Raffensperger to investigate.

But John Banzhaf III, a professor of public interest law at George Washington University, noted that the law says a jury could infer criminal intent based on an unexplained or unjustified attempt to keep a questionable act secret.

“A jury is not only legally permitted — but also very likely to — find that the perpetrators operated in secrecy, and used deception and lying, because they knew that the highly questionable actions they were carrying out were illegal,” Banzhaf said.

Defendants can produce evidence trying to establish a valid reason for their secrecy. But in this case, Banzhaf said it would be “hard to imagine” anything that would persuade a jury “that the secrecy, lying, and deception all occurred for perfectly valid and acceptable reasons.”

Sinners, who is now director of constituent services for the Secretary of State’s office, told the Atlanta Journal-Constitution that he was working under the direction of other Trump campaign officials and Shafer.

“I was advised by attorneys that this was necessary in order to preserve the pending legal challenge,” he said in a written statement. “Following the Former President’s refusal to accept the results of the election and allow a peaceful transition of power, my views on this matter have changed significantly from where they were on December 13th.

“I’ve worked tirelessly over the past year and half to counteract conspiracy theories related to the 2020 election, and continue to do so no matter which side is claiming the election was or has been stolen,” Sinners said.

Shafer’s attorney Robert Driscoll said that his client “has already produced, under subpoena, all his communications surrounding the December 2020 provisional elector logistics, including his communications with the Trump campaign and Mr. Sinners, to the January 6th Committee.”

“None of these communications, nor his testimony, suggest that Mr. Shafer requested or wished for confidentiality surrounding the provisional electors,” he said. “Quite to the contrary, Chairman Shafer invited TV news cameras into the proceedings and both issued a statement and gave a televised news interview immediately afterward, informing the public that the purpose of the meeting was to preserve President Trump’s remedies in the event his then-pending lawsuit contesting the Georgia Presidential election succeeded.”

Beach and Jones, now the GOP’s nominee for lieutenant governor, did not respond to requests for comment.

Bullard, the appellate attorney, said should the Fulton DA move forward with charges, it will ultimately be up to a jury to decide if prosecutors have proven there was adequate intent.

“None of this is to say that an indictment or a conviction is a forgone conclusion even now. But the landscape is drastically different than it was even last week,” he said. “The prosecution has more ammunition than it did before and the defense now has more things to try to blunt than it did before.”

Coming Thursday: What could the prime-time congressional hearing on the Jan. 6 attack on the U.S. Capitol reveal about the role of Georgians in the effort to overturn the 2020 presidential election?