The Justice Department is reviewing the false Electoral College documents to determine whether the electors committed crimes, CNN first reported Tuesday.
And the Georgians could come under scrutiny from Fulton County District Attorney Fani Willis, who is investigating Trump’s attempt to reverse his defeat. Willis, who hasn’t commented on the possible expansion of the inquiry, recently won approval for a special grand jury with broad powers to subpoena witnesses and compel the production of documents and information.
Though legal experts disagreed on the strength of the potential criminal case against the would-be GOP electors, some said Willis should investigate.
“It would be hard to understand how, given the direction of the DA’s work, that she and her team would not look at the role of fraudulent electoral certificates,” said Norm Eisen, co-author of a Brookings Institution report that found Trump may have broken numerous laws in Georgia. “They’re phony as a $3 bill.”
The alternative slate, which met behind closed doors in a second-floor state Capitol conference room while Democrats formally cast their ballots in the state Senate chambers, were not a fringe group.
Among the members are state Republican Party Chairman David Shafer and state Sen. Burt Jones, now a leading candidate for lieutenant governor. Several well-known activists and party officials also were involved.
Shafer declined to discuss a possible criminal investigation in detail, but he cited statements he made after the alternative electors voted in December 2020. At the time, he said the electors convened to preserve Trump’s legal rights as he pressed to overturn the election in court.
Jones, who has repeated Trump’s false allegations of election fraud, declined to comment.
Scrutiny of the alternative electors comes as Congress investigates the events leading to the Jan. 6, 2021, assault on the U.S. Capitol that temporarily disrupted Congress’ tally of Electoral College votes.
Biden won Georgia by just 11,779 votes — a victory confirmed by two recounts and other investigations that found no fraud that would have changed the outcome of the election. But Trump spent weeks trying to overturn the election in court, in state legislatures and, finally, in Congress on the day of the Capitol riot.
Trump hoped to persuade Vice President Mike Pence to accept the alternative electors or — barring that — to allow the House of Representatives or state legislatures to pick the president under rules that would have favored Trump’s reelection. Pence concluded he did not have the legal authority to do that.
In the documents submitted to the federal government and obtained by the group American Oversight, alternative electors from some states made it clear their status depended on Trump winning in court or in some other proceeding. Documents from Georgia contained no such caveats.
Legal experts interviewed by The Atlanta Journal-Constitution cited various federal and state laws against false statements, forgery, racketeering and election fraud that the alternative electors might have violated.
Georgia State University law professor Clark Cunningham said the documents submitted by the Georgia Republicans are “full of stunning falsity.”
For example, the 16 Republicans signed a statement saying they were the “duly elected and qualified” electors from Georgia. That wasn’t true.
Shafer recently told The Washington Examiner that “we completed the forms exactly as prescribed by law.”
“We did not alter them because we were told (by Trump’s lawyers) that any alterations would be grounds for dismissing the lawsuit for lack of available remedy,” he said.
Cunningham said the case should be presented to a grand jury as quickly as possible.
“Assuming these documents can be authenticated,” he said, “I don’t think anything else is needed to obtain an indictment.”
Others weren’t so sure. Criminal defense attorney Steve Sadow said the false Electoral College documents could be considered an attempted forgery. But he said the intent of the electors would be a key factor.
“The whole question it would come down to is, was the purpose behind this an attempt to mislead or misrepresent the presidential results from the state of Georgia,” Sadow said.
Former DeKalb County District Attorney Gwen Keyes Fleming, another co-author of the Brookings report, agreed the intent of the Republican electors would be a key factor. And criminal defense attorney Leigh Ann Webster said it would be difficult to prove the electoral paperwork was intended to mislead anyone.
“In the media at the time when it became clear all this was happening, they said they were doing it as a precautionary measure in case the election results were overthrown by the courts,” Webster said. “I think that’s going to be really difficult to show an intent to do something wrong.”
Illegal or not, some would-be GOP electors were not comfortable participating in the Trump slate. Four Republicans took their names off the electoral list. At least one other rejected an offer to join the group.
John Isakson, the son of the late U.S. Sen. Johnny Isakson, initially agreed to serve as a Trump elector if the former president won reelection but refused to be included on the new slate.
Isakson said he didn’t want to participate in a process that seemed like “political gamesmanship.”
State Rep. Susan Holmes, a Monticello Republican, declined to comment, while C.J. Pearson said he couldn’t serve because he moved to Alabama to attend college. Patrick Gartland cited personal reasons for his decision.
Gartland later tried to recruit Jason Shepherd, who was then the Cobb County GOP chair, to join the slate. But Shepherd said by then it was clear the pro-Trump efforts had failed.
“I was more focused on Jan. 5,” Shepherd said of the U.S. Senate runoffs that Democrats swept. “It would have been a waste of a day. In my opinion, there was no point.”