Former Georgia Republican Party chairman David Shafer is among the defendants in the sweeping election interference case against former President Donald Trump and his allies to try and remove his case to U.S. District Court in Atlanta. And he’s making a novel argument: As one of the 16 Republicans who cast an Electoral College vote for Trump in the face of Joe Biden’s win, Shafer says he was acting as a federal official.
Shafer is one of three defendants who have moved to have their cases transferred from Fulton Superior Court to federal court. The others — former White House Chief of Staff Mark Meadows and ex assistant U.S. Attorney General Jeffrey Clark — both have more straightforward arguments. Both were working in the Trump administration at the time of their alleged criminal acts. Trump is also expected to request his case be transferred to federal court but he hasn’t done so yet.
Legal experts are divided over whether the efforts will succeed. But some say if one or more of the 19 defendants successfully removes his or her case to federal court, the entire case would transfer there.
Shafer oversaw the Dec. 14, 2020 GOP meeting at the state Capitol of “alternate electors.” He is charged with eight counts in the 41-count indictment. Among them: racketeering, impersonating a public officer, forgery in the first degree and false statements and writings.
In their court filing late Monday, Shafer’s lawyers — Craig Gillen, Anthony Lake and Holly Pierson — insist their client committed no crimes and contend the state has no right to prosecute him for what he did. “Permitting a state to criminalize the preparation or sending of ‘purported’ presidential elector ballots to Congress ... usurps and obstructs Congress’ exclusive authority,” the motion said.
The Trump racketeering case is pending before Fulton Superior Court Judge Scott McAfee, who has been signing consent bonds for all the defendants, including a $75,000 bond for Shafer on Tuesday. To move a case out of Fulton to federal court, three conditions must be met: the defendant must have been a federal officer; the actions for which he is charged were performed “under the color of such office;” and he must have a “colorable” federal defense.
In Shafer’s case, the motion said, he was an officer of the U.S. when he served as a “contingent presidential elector.” And he has numerous federal defenses, such as those under the supremacy clause, the First Amendment and the due process clause of the U.S. Constitution.
The filing also said that the Electoral Count Act allows for more than one tally of Electoral College votes to be filed before the U.S. Senate, with both houses to decide which tally was cast “by lawful electors appointed in accordance with the laws of the state.”
The act’s “plain text recognizes the legitimate role of contingent electors in disputed presidential elections,” the motion asserted.
The indictment alleges that the “false documents” sent by GOP electors were “intended to disrupt and delay” the joint session of Congress on Jan. 6, 2021, in order to “unlawfully” change the outcome of the presidential election in Trump’s favor. But Shafer’s court filing said the votes were only cast on a contingency basis.
Attached to the filing was a transcript of the meeting of the GOP electors in a committee room at the state Capitol. At the outset, Shafer tells his fellow “Republican nominees for the Electoral College” that a lawsuit has been filed challenging the outcome of Georgia’s presidential election.
Credit: AP
Credit: AP
“That contest is pending,” he said. “It’s not been decided or even heard by any judge with the authority to hear it. And so in order to preserve his rights, it’s important that the Republican nominees for presidential elector meet here today and cast their votes.”
Atlanta attorney Ray Smith III, a Trump attorney advising the group, soon seconded Shafer’s comments.
“We’re conducting this — as chairman Shafer said — we’re conducting this because the contest of the election in Georgia is ongoing,” he said, adding that what they were doing was “similar to what happened in 1960 in Hawaii.”
Smith, one of the 19 defendants in the Fulton racketeering case, was referring to the presidential election in Hawaii where Richard Nixon initially was certified the winner. But result was challenged and on the same day when the three official GOP electors voted for Nixon, three alternate Democratic electors cast their votes for Kennedy. A recount would show Kennedy narrowly won the state and the Democrats’ votes were later tallied in Congress.
A key difference: In Georgia three vote counts had all confirmed Biden’s win.
Still, shortly before the 16 GOP electors cast their votes, Shafer asked Smith, “And if we did not hold this meeting, then our election contest would effectively be abandoned, is ... that not correct?”
“That’s correct,” Smith said.
U.S. District Judge Steve Jones is scheduled to hear Meadows’ removal motion on Aug. 28. Shafer’s and Clark’s cases also have been assigned to Jones. No hearings for their motions have been set.
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