Former Georgia GOP chair argues against indictment in Trump probe

Chairman David Shafer speaks at the Georgia GOP State Convention in Jekyll Island, Georgia on June 5th, 2021. Nathan Posner for the Atlanta-Journal-Constitution

Credit: Nathan Posner for the AJC

Credit: Nathan Posner for the AJC

Chairman David Shafer speaks at the Georgia GOP State Convention in Jekyll Island, Georgia on June 5th, 2021. Nathan Posner for the Atlanta-Journal-Constitution

Lawyers for Georgia’s former Republican Party chair are again trying to fend off their client’s possible indictment into possible criminal interference with the 2020 presidential election.

Ex-GOP chair David Shafer was within his constitutional rights when he cast an “alternate” Electoral College ballot for then-President Donald Trump and therefore should not be criminally charged, Shafer’s lawyers told Fulton County District Attorney Fani Willis.

The attorneys made their case in 13-page letter sent to Willis on July 18. Willis is expected to seek an indictment against several individuals in August, and she has previously identified Shafer as one of the targets of her investigation.

But Shafer, who presided over the Dec. 14, 2020, meeting of the alternate GOP electors, is protected by the First, Fifth and Fourteenth Amendments, his lawyers told Willis. “Such actions are not and cannot be criminal or criminalized, and any attempt to do so is a direct assault on these most highly protected constitutional freedoms.”

The lawyers attached an “expert declaration” from Todd Zywicki, a George Mason University bankruptcy law professor who said he also specializes in laws governing presidential elections and transitions. Shafer’s actions, Zywicki wrote, were “lawful, reasonable, proper and necessary, and any suggestion that they could be ‘criminal’ ignores legal and historical precedent, the reasoned advice of counsel received and the plain language of the Constitution, federal and Georgia law.”

A spokesman for the Fulton DA’s office declined to comment.

The letter to Willis was sent on the same day Michigan Attorney General Dana Nessel filed criminal charges against 16 phony electors for doing essentially the same thing Shafer and his 15 fellow false electors did in a committee room at the state Capitol here. Like the electors in Georgia, Michigan’s GOP electors, in casting their votes for Trump and Pence, said they were “the duly elected and qualified electors.”

“That was a lie,” Nessel said in statement. She added that the electors may have believed “the now-debunked myths of vote tampering or ballot dumps” and may have “genuinely believed that this was their patriotic duty,” but that did not give them “legal justification to violate the law and upend our Constitution.”

Willis could take a similar stance with Shafer and some of the other false electors in Georgia, although her office has given immunity deals to at least eight of the Georgia GOP’s 16 false electors, a lawyer for those individuals has said. Recent campaign disclosures show the state GOP paid out more than $340,000 to lawyers representing the false electors during the first six months of this year.

A photo of Georgia GOP Chairman David Shafer and other "electors" for Donald Trump at a Dec. 14, 2020 meeting at the state Capitol. Photo shot and then tweeted out by WSB-TV reporter Richard Elliott.

Credit: Richard Elliott, WSB-TV

icon to expand image

Credit: Richard Elliott, WSB-TV

As for Shafer, he is situated differently than the other electors, said his lawyers, Craig Gillen, Holly Pierson and Anthony Lake.

At the time the alternate slate of electors convened, a lawsuit challenging the Georgia election results, with Trump and Shafer as co-plaintiffs, was pending, the lawyers said. Shafer had a First Amendment right to pursue such litigation and his Electoral College vote for Trump was to ensure that his lawsuit would not be rendered moot and effectively waive his rights, the letter said. There was no such litigation pending in Michigan at that time.

The lawyers also repeated assertions they made in a letter sent to Willis in March in which they said Georgia’s false GOP electors did the same thing Democratic electors did in Hawaii in the 1960 presidential election. In that race, Richard Nixon had been certified the winner by just a 140-vote margin.

Democrats challenged the result and, with recount underway, three Democrats cast Electoral College votes for Kennedy on the same day the state’s three official GOP electors voted for Nixon. After the recount showed Kennedy won Hawaii by a 115 votes, the three Democrats’ votes were later tallied in Congress for Kennedy.

Some legal experts say a difference between the 1960 and and 2020 races was that a recount of a razor-thin margin was underway in Hawaii while recounts in Georgia had already been conducted and Democrat Joe Biden led Trump by 11,779 votes.

Still, Shafer and the other electors did nothing wrong, the letter to Willis insisted. Because “very experienced and reputable attorneys provided explicit legal advice to Mr. Shafer and the other electors, based on the existing law and the Hawaii precedent, their actions were entirely proper and lawful.”