Jason Willick in the Washington Post:
After the Jan. 6, 2021, Capitol riot, Donald Trump’s opponents had a dilemma. The president’s behavior had been egregious, but the Senate acquitted him in an impeachment trial. He had to be criminally charged — but for what? His role in the riot seemed to entail First Amendment-protected speech, such as sharing falsehoods about the 2020 election on social media and delivering a rowdy political speech on the Ellipse.
It took a while for Trump’s opponents to figure out a hook for a criminal prosecution: “fake electors.” In states Trump lost, such as Arizona and Michigan, his supporters had gathered in December 2020 to simulate an electoral college vote as if he had won. The “alternate electors,” as they were then called, got some media coverage, but no one confused them for the electors certified by state officials.
. . .
The idea is that sending Congress a slate of electors representing the losing candidate is a political act, not a crime. And in Arizona, Judge Sam J. Myers ruled that state prosecutors had given that defense short shrift. The Electoral Count Act is “central to the Defendant’s claims that they were acting lawfully and without an intent to defraud,” Myers wrote in orders released Monday. Yet “the actual text and provisions of the ECA were never provided to the grand jury.”
As a result, the judge concluded, the grand jury proceeding did not comply with due process. If the state’s Democratic attorney general, Kris Mayes, wants to press forward with her case, she’ll need to get the ruling reversed on appeal or go back to seek the indictment again. Mayes also said in February that she would appeal the judge’s finding that her prosecution might interfere with the electors’ free-speech rights.
Nor have liberal prosecutors been cruising to convictions of “fake electors” in other states. In the Michigan electors case, the Detroit News reported last year that “prosecutors have struggled to supply evidence to back up charges that made national headlines” in pretrial proceedings. In Nevada, a judge ruled that charges against Trump electors — filed in 2023 just before a statute of limitations ran out — were brought in the wrong place. That will move the trial to a more conservative jury pool.
Wisconsin’s justice department doubted that the Trump elector slate was criminal in 2022, only to bring charges in 2024 against operatives who organized it. Georgia’s case — which immolated spectacularly because of an ethics complaint against the district attorney — has paradoxically been the most successful, producing a handful of guilty pleas.
Some of these state-level prosecutions might still make their way to trial and conviction in the coming months and years. But even then, they will confront novel issues on appeal because of the First Amendment right to petition Congress and the ambiguity of the Electoral Count Act (which Congress clarified in 2022). At the end of it all, cases about the 2020 election probably won’t be resolved until the 2030s.