Three alternate presidential electors who argue their efforts to support former President Donald Trump in Georgia in the 2020 election were shielded by federal law, urged a federal judge on Sept. 20 not to return state racketeering charges against them to state court.
The federal removal hearing before Judge Steve C. Jones of the Northern District of Georgia is apparently the first test in federal court of alternate electors’ argument that they are immune to state prosecution because they were acting as federal officers. The judge was appointed in 2011 by President Barack Obama.
The evidentiary hearing in Atlanta lasted a little under three hours.
On Sept. 8, Judge Jones rejected the motion of former Trump White House Chief of Staff Mark Meadows to remove the state election interference case against him to federal court. The judge ruled that he lacked jurisdiction to hear the case and found that Mr. Meadows’s “political activities,” such as “working with or working for the Trump campaign,” went beyond “the outer limits of the Office of the White House Chief of Staff.”
Mr. Meadows has asked the U.S. Court of Appeals for the 11th Circuit to review the judge’s decision. His lawyers argued in a brief filed on Sept. 18 that he “is entitled to removal under [the federal officer removal statute] because he has met the threshold for removal, which is low[.]”
President Trump, Mr. Meadows, the three alternate electors, and 14 other co-defendants were indicted (pdf) by a state grand jury in Fulton County, Georgia, on Aug. 14 over the former chief executive’s challenge to the election in Georgia.
All the defendants in the case are accused of violating the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act from Nov. 4, 2020, which is the day after the presidential election, to Sept. 15, 2022, for their allegedly illegal efforts to challenge the presidential election results in Georgia, a state that President Joe Biden ultimately won—albeit narrowly.
The three alternate electors—David Shafer, Shawn Still, and Cathleen Latham—are all charged with violating the Georgia RICO statute, impersonating a public officer, and criminal attempt to commit filing false documents.
Mr. Shafer is a former Georgia state senator and former chairman of the Georgia Republican Party. He chaired the group of electors that met on Dec. 14, 2020, to cast their votes for President Trump.
Mr. Still is currently a Georgia state senator and used to be finance chairman of the Georgia Republican Party. He was elected in 2022 but was not in office when the electors met in December 2020. He served as secretary of the group of electors.
As the state constitution requires, Georgia Gov. Brian Kemp (R) appointed a three-member panel to recommend whether Mr. Still should remain in office despite being indicted. The panel did not recommend the senator’s suspension, the governor’s office said on Sept. 15.
Ms. Latham used to chair the Coffee County Republicans.
In addition, Mr. Shafer and Mr. Still are each charged with two counts of forgery in the first degree; Ms. Latham is charged with one count of forgery in the first degree.
Mr. Shafer is also charged with three counts of false statements and writings; Mr. Still, two counts; and Ms. Latham, one count.
Ms. Latham is also charged with two counts of conspiracy to commit election fraud, one count of conspiracy to commit computer theft, one count of conspiracy to commit computer trespass, one count of conspiracy to commit computer invasion of privacy, and one count of conspiracy to defraud the state.
At the Sept. 20 removal hearing, the presidential electors’ attorneys told Judge Jones that the case should be heard in federal court because electors are, like congressmen, federal officers whose official conduct may not be challenged in state court.
Before the results of any presidential election are certain, both parties appoint electors who are expected to vote for their party’s standard-bearer based on the popular vote in the state. Both sets of electors are federal officers who are entitled to protection under federal law when they are doing their duty, the lawyers argued.
The attorneys likened what happened in the 2020 election in Georgia to what transpired when Republican Richard Nixon challenged the 1960 presidential vote in Hawaii. Eventually, Democrat John F. Kennedy narrowly prevailed after recounts, winning the state’s three electoral votes and becoming president.
But before Congress finalized the state results, Hawaii sent competing slates of Republican and Democrat electors to Congress for official certification. Presiding over the congressional count, then-Vice President Nixon considered both electoral slates but then ruled that the Democrat slate should be accepted and the Republican slate should be rejected.
The 1960 Hawaii Republican electors were not charged with a crime, so the 2020 Georgia Republican electors should also not have been charged with a crime, the lawyers implied.
The 2020 Georgia Republican electors were acting in good faith and were not impersonating electors, they said.
Before the so-called safe harbor date of Dec. 8, 2020, the state handles certification of the electors, but after the safe harbor date, Congress has jurisdiction over the election, the lawyers said.
Mr. Shafer’s attorney, Craig Gillen of the Savannah law firm of Gillen, Withers, and Lake, said the Trump electors did nothing wrong.
“What bothers me is that these three electors have been labeled by the state and implicitly by the media as fake,” he said.
“By federal law, these people were not fake, sham, or impersonators.”
“Both sets of electors were contingent,” he said, adding that the Electoral Count Act of 1887 contemplates states sending multiple slates of electors to Congress for the official counting of the electoral votes.
But after the safe harbor date, “the power is no longer with the state of Georgia—it’s gone back to Congress,” he said.
“You either like Donald Trump or you hate Donald Trump,” and this fact prejudices some people against those in the former president’s orbit, Mr. Gillen added.
Prosecutor Anna Green Cross pushed back, saying the state was “not the least bit interested in the political affiliation of those who committed criminal acts.”
The suggestion that the state is politically motivated in this case is “borderline offensive,” she said.
Moreover, there were attempts to keep the alternate elector meeting “completely under wraps,” Ms. Cross said.
“These private actors did not transform themselves into public electors by a criminal act,” she said.
Mr. Still’s lawyer, Tom Bever of the Atlanta law firm of Smith, Gambrell, and Russell, suggested the charges were absurd.
The electors were charged with casting a ballot, impersonating electors, and forgery of their own signatures, Mr. Bever said.
“There is no question that each of these people became an elector and was appointed an elector in a completely proper manner,” the attorney said.
Mr. Bever said the Trump electors’ meeting was not held in a clandestine manner.
“Literally, the whole world was watching,” he said.
The meeting was attended by attorneys and the media, he said, adding it was “hardly your normal setting of a racketeering act.”
The electors “never dreamed they had done anything wrong,” Mr. Bever said.
Judge Jones concluded the hearing without deciding on the removal motions. It is unclear when he will rule.
