Fulton County District Attorney Fani Willis possesses evidence that exonerates several Republicans she’s targeting in her legal crusade against former President Donald Trump and other Republicans for their lawful contesting of Georgia’s flawed 2020 election.
In her Aug. 14 indictment, Willis alleged the existence of Republican electors for Trump constituted an unlawful “conspiracy” to overturn the Peach State’s 2020 election results. Among those charged for partaking in this so-called “conspiracy” are David Shafer, one of Georgia’s 2020 Republican electors, and Ray Smith, who served as one of Trump’s lawyers at the time of the contest.
Specifically, Willis claimed Shafer and the other alternate electors “unlawfully falsely held themselves out” as Georgia’s “duly elected and qualified” presidential electors. She further insisted these electors — with Smith’s assistance — intentionally attempted to “mislead” figures such as then-Vice President Mike Pence and Georgia Secretary of State Brad Raffensberger “into believing that they actually were such officers.”
However, among the documents Willis obtained during her years-long investigation of Republicans was a meeting transcript refuting her allegations.
A transcript of the Georgia Republican electors’ Dec. 14, 2020, meeting, obtained by The Federalist, explicitly shows the intent behind casting alternate electors was not to impersonate public officers, as Willis alleged, but to lawfully preserve Trump’s legal challenge to the state’s election results. At the meeting’s outset, Shafer specifically noted how he and his fellow Republicans were acting as “Republican nominees for Presidential Elector,” not as “duly elected and qualified” presidential electors.
“[President Trump] has filed a contest to the certified returns. That contest — is pending [and has] not been decided or even heard by any judge with the authority to hear it,” Shafer said. “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.”
For context, Shafer and Trump filed a lawsuit against Secretary of State Raffensberger in Fulton County state court on Dec. 4, 2020, alleging tens of thousands of illegal votes had been cast in the state’s presidential election. The suit came after a recount, requested by Trump, deemed Biden the winner of Georgia’s 16 electoral votes by a margin of 11,779. The recount prompted Raffensberger to recertify the election on Dec. 7 while Trump’s legal challenge remained ongoing.
By the time Dec. 14, 2020, arrived — the day on which nominees for presidential electors are required by federal law to meet — Trump and Shafer’s lawsuit was still pending. As such, Georgia’s Republican nominees, including Shafer, cast their electoral votes for Trump while the state’s Democrat nominees cast theirs for Biden.
During the Dec. 14, 2020, meeting, Shafer further clarified the legal rationale for filing alternate electors in a conversation with Smith, asking Trump’s then-lawyer: “And so the only way for us to have any judge consider the merits of our complaint, the thousands of people we allege voted unlawfully, is for us to have this meeting and permit the contest to continue?”
“That’s correct,” Smith replied.
The naming of contingent Republican electors during the 2020 election closely mirrors efforts taken during the 1960 presidential contest between John F. Kennedy and Richard Nixon. As The Federalist’s Margot Cleveland previously reported, a dispute over who won Hawaii’s electoral votes prompted both Kennedy and Nixon electors to cast their votes for their respective candidates. While Hawaii’s acting Republican governor initially certified the election for Nixon, a legal challenge and subsequent court decision resulted in the state’s electoral votes being awarded to Kennedy.
Unlike Kennedy, Trump never had his day in court over his legal challenges to those votes and others, but had the court ruled in Trump’s favor, the alternative electors would have been in place to ensure the will of the Georgia people was exercised.
While speaking to Shafer and the other Republican electors at the Dec. 14, 2020, meeting, Smith asserted the naming of Republican electors for Trump would be conducted “in accordance with the Constitution” and the precedent established in the 1960 Hawaii case, saying, “We’re conducting this because the contest of the election in Georgia is ongoing.”
“And if we did not hold this meeting, then our election contest would effectively be abandoned?” Shafer asked, to which Smith replied, “That’s correct.”
The revelations unearthed in the transcript raise a significant question: If Willis was in possession of the transcript prior to Aug. 14, why did she charge Shafer and Smith for allegedly partaking in a “conspiracy” to overturn Georgia’s 2020 election results when the aforementioned document shows otherwise?
Willis did not respond to The Federalist’s repeated requests for comment on when her office possessed the Dec. 14, 2020, transcript prior to announcing Shafer and Smith’s indictments to the public.
Georgia Republican Continge… by The Federalist
Unlike the 1960 Hawaii case, which was promptly resolved in court prior to Congress’s certification of the election, the Fulton County state court reportedly violated Georgia’s election code by failing to swiftly assign a judge to hear Trump’s election challenge. Furthermore, the Georgia court delayed the first scheduled hearing of Trump’s lawsuit until Jan. 8, 2021 — “two days after Congress certified Biden the winner of the 2020 election” — which effectively guaranteed that any court decision invalidating potentially illegal ballots would be moot.
It’s worth mentioning that evidence unearthed following the 2020 election shows Trump’s legal challenge in Georgia had strong merit, with records indicating there were more illegal votes than Biden’s margin of victory in Georgia. Under state law, Georgians must vote in the county where they reside, unless they changed their residence within 30 days of Election Day.
As The Federalist reported, however, Mark Davis, the president of Data Productions Inc. and “an expert in voter data analytics and residency issues,” used data from the National Change of Address database to identify “nearly 35,000 Georgia voters who indicated they had moved from one Georgia county to another, but then voted in the 2020 general election in the county from which they had moved.” In a phone interview this week, Davis told The Federalist that more recent figures show more than 12,000 of those 35,000 Georgians later updated their voter registration addresses, “providing the secretary of state the exact address they had previously provided to the [U.S. Postal Service].” In other words, more than 12,000 in-state movers tacitly confirmed they illegally cast their vote in the wrong county in 2020.
The ‘Fake Electors’ Charges Are Fake News
Contrary to Willis’ indictments, constitutional law specialists such as Todd Zywicki, a professor at George Mason University’s Antonin Scalia Law School, have argued the casting of alternate electors in Georgia was perfectly legitimate and adheres to existing legal precedent. In a July 18 letter requesting a meeting with Willis, Shafer’s legal team enclosed an expert declaration issued by Zywicki, in which he contended the actions undertaken by Trump’s legal team and the Republican electors in Georgia “followed the Hawaii precedent precisely” and used “materially identical forms and the same procedures as the contingent 1960 Hawaii Democratic Presidential Electors.”
“At the same time, the contingent Georgia Republican Presidential Electors publicly announced that the votes they cast and related actions they took were expressly contingent on the outcome of the pending election contest and were cast only to protect and preserve the remedies for that contest and the ability of the State of Georgia to have a valid electoral ballot for Congress to count on January 6, 2021 regardless of the ultimate outcome [of] that contest,” Zywicki wrote.
The law professor furthermore noted that in casting their votes for Biden, Georgia’s Democrat electors were also “acting contingently … as their status as Presidential Electors was directly contingent on the outcome” of Trump’s contesting of the state’s election results in court. Similar to their Republican counterparts, the Democrat electors “made no similar announcement that their votes and actions on December 14, 2020 were contingent on the outcome of the election contest.”
Unlike Republicans, however, the state’s Democrat electors “have come under no criticism or scrutiny for having not done so,” Zywicki noted.
Shafer’s Ongoing Legal Fight
In light of the charges levied against their client, Shafer’s legal team filed a motion last week to have his case moved from Fulton County Superior Court to the U.S. District Court for the Northern District of Georgia.
In the filing, Shafer’s lawyers argued that neither Georgia nor Willis possesses the legal authority to charge Shafer for actions he took in his capacity as a lawful presidential elector and further requested the federal court “assert its habeas or equitable jurisdiction to bar the State’s prosecution.” Shafer’s team further contended the state’s prosecution “seeks to criminalize a political dispute that only Congress possesses the authority to resolve.”
“Like Members of Congress, presidential electors are created by the Constitution, elected by the States, but serve a federal role under federal authority,” the motion reads. “Just as Members of Congress are federal officers” under federal law, “so too then, by the same analogy, are presidential electors. Mr. Shafer was an officer of the United States for the broad purposes of removal under” the same statute.
According to Shafer, on Tuesday, Obama-appointed District Judge Steve Jones ordered a hearing on Shafer’s motion.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
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