Special Counsel Jack Smith regurgitated Democrats’ phony “fake electors” smear in his latest brief filed against Donald Trump in federal court on Wednesday. Smith previously indicted Trump for questioning the administration of the 2020 election.
Writing in his 165-page screed about Trump’s legal efforts challenging the results of the 2020 contest, Smith claimed that Trump engaged in criminal activity by, among other alleged actions, “manufacturing fraudulent electoral votes in the targeted states.” This “plan,” the Merrick Garland appointee contended, was designed to “cause” Trump electors in these states to “sign and send to [Vice President Mike Pence], as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for [Trump].”
“Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly ‘dueling’ slates to the state legislatures for consideration anew,” the brief reads.
Contrary to Smith’s claims, the naming of contingent Republican electors during the 2020 election cycle was neither unprecedented nor unlawful. In fact, the process conducted in contested states like Georgia parallels a similar endeavor that occurred during the 1960 presidential contest between Democrat John F. Kennedy and Republican Richard Nixon.
As The Federalist’s Margot Cleveland previously reported, Kennedy and Nixon electors cast their votes for their respective candidates when a disagreement arose over who won Hawaii’s electoral votes. While the state’s acting governor certified the election for Nixon initially, a legal challenge followed by a court decision ultimately resulted in Kennedy receiving the electoral votes.
Had courts similarly ruled in Trump’s favor in lawsuits disputing the election results in battleground states, the alternate electors would have been in place to ensure the will of the people was exercised, as was the case in the Kennedy-Nixon dispute.
This historical precedent hasn’t stopped radical left-wing prosecutors from filing charges against Republican electors who partook in the 2020 process, however.
Democrat attorneys general in Arizona, Wisconsin, Nevada, and Michigan have all filed such charges in the years since 2020. Fulton County DA Fani Willis also brought charges against Georgia Republicans. A Nevada judge did, however, dismiss Democrat AG Aaron Ford’s charges against the Silver State’s 2020 GOP electors in June due to a jurisdiction error on the part of prosecutors, as The Federalist’s Matt Kittle reported.
It’s worth mentioning that Democrats had no problem advocating for electors to vote differently during the 2016 election following Trump’s victory against Hillary Clinton. As my colleague Jordan Boyd previously highlighted, corporate media ran “[a]rticles demanding state electors ‘prevent an irresponsible demagogue from taking office’ and overrule Americans to install Hillary Clinton as president” as part of their efforts to keep Trump from taking office.
Smith’s brief comes months after the U.S. Supreme Court ruled that presidents possess “absolute immunity” for “actions within his conclusive and preclusive constitutional authority” and “at least presumptive immunity” for “official acts.” The high court separately noted, however, that “[t]here is no immunity for unofficial acts,” and remanded the Biden-Harris Justice Department’s get-Trump lawfare back to the lower courts to determine whether certain actions alleged by Smith constitute “official acts.”
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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