3.6 The Fallout from the Fake Elector Plan

¶In spite of the Trump Campaign’s efforts to give the fake electors’ votes the sheen of authenticity, they failed. The U.S. Senate Parliamentarian noted in correspondence by January 3rd that materials from the Trump team’s supposed electors in Arizona, Georgia, Nevada, New Mexico, and Pennsylvania had “no seal of the state” and “no evidence votes were delivered by the executive of the state for signature by electors,”¹⁰⁹¹⁰⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000417_0001, VP-R0000418_0001 (January 3, 2021, email from Elizabeth MacDonough, subject “RE: COV tracker” with attachment); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00094 (Attachment to email from Elizabeth MacDonough, subject “RE: COV tracker”).Show full note and, as a result, these materials failed to meet requirements of federal law. Similarly, the Senate Parliamentarian noted that the Trump team’s slates from Georgia, New Mexico, and Pennsylvania appeared to violate another statute which requires the approval of the Governor for the substitution of electors.¹¹⁰¹¹⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000417_0001, VP-R0000418_0001 (January 3, 2021, email from Elizabeth MacDonough, subject “RE: COV tracker” with attachment); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00094 (Attachment to email from Elizabeth MacDonough, subject “RE: COV tracker”).Show full note Meanwhile, the documents from Michigan and Wisconsin did not even arrive to Congress on time, so they also had missed the required statutory deadline.¹¹¹¹¹¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), pp. 144–45, 206–07.

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¶Several of the Trump team’s fake electoral slates also failed to follow State rules specifying where they were required to meet. In Georgia and Wisconsin, State lawmakers or their staff appear to have helped participants gather inside their State capitols.¹¹²¹¹² In Wisconsin they were able to enter with apparent help from the chief of staff for then majority leader of the Wisconsin State Senate, Scott Fitzgerald, who now represents Wisconsin in the U.S. House of Representatives. In Georgia, a freelance reporter who has testified to the Fulton County grand jury claims to have found that the room in which the fake electors met was reserved by the office of Georgia House Speaker David Ralston, which is consistent with what Georgia GOP Chairman David Shafer told the Select Committee. See “Open Records Regarding Wisconsin’s Fake Electors Suggest Congressman Scott Fitzgerald Played Significant Role in Trying to Overturn a Free and Fair Election,” Office of Wisconsin State Senator Chris Larson, (Jan. 25, 2022), available at https://legis.wisconsin.gov/senate/07/Larson/media/2056/1-25-22-fitzgerald-electors-pr.pdf; Letter from Cyrus Anderson, Deputy Sergeant at Arms, Wisconsin State Senate to State Sen. Chris Larson, attaching documents, Jan. 24, 2022, available at https://legis.wisconsin.gov/senate/07/Larson/media/2052/12-14-20-open-records-request-results-short.pdf; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of David Shafer, (Feb. 25, 2022), pp. 93–94, 106; Michael Isikoff and Daniel Kladman, “Exclusive: Fulton County DA Sends ‘Target’ Letters to Trump Allies in Georgia Investigation,” Yahoo! News, (July 15, 2022), available at https://news.yahoo.com/exclusive-fulton-county-da-sends-target-letters-to-trump-allies-in-georgia-investigation-152517469.html; George Chidi, “Bearing Witness,” The Atlanta Objective with George Chidi, (June 29, 2022), available at https://theatlantaobjective.substack.com/p/bearing-witness; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Shawn Still Production), 108755.0001_000009 (December 13, 2020, email from Shawn Still to Dana Pagan re: “Fwd: Information of Duties of Presidential Electors – Monday Dec. 14th”).Show full note But in Michigan, the fake Trump electors were blocked from entering the State capitol building.¹¹³¹¹³ Daniel Villareal, “Michigan Republicans Tried to Submit Fake Electoral Votes to Capitol,” Newsweek, (Dec. 15, 2020), available at https://www.newsweek.com/michigan-republicans-tried-submit-fake-electoral-votes-capitol-1555028. Despite this, they still signed documents attesting that they “convened and organized in the State Capitol, in the City of Lansing, Michigan, and at 2:00 p.m. . . . performed the duties enjoined upon us.”¹¹⁴¹¹⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), CTRL0000037945, p. 2 (December 14, 2020, memorandum of purported Michigan electors for Donald J. Trump). That document had been signed earlier in the day off-site, and one of the signatories even told the Committee she didn’t join their march to the State capitol building because she “didn’t see a need to go.”¹¹⁵¹¹⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Mayra Rodriguez, (Feb. 22, 2022), pp. 18, 21; Laina G. Stebbins, “Feds Serve Subpoenas to Pro-Trump Fake Electors in Michigan,” Michigan Advance (June 23, 2022), available at https://michiganadvance.com/blog/feds-serve-subpoenas-to-pro-trump-fake-electors-in-michigan/.

¶If the entire premise of the fake votes was not enough, these infirmities also meant that they had no legal relevance. In no way could they ever have been used by the Vice President to disregard the real votes of electors chosen by the voters.

¶In the weeks between December 14th and January 6th, President Trump’s team continued to embrace the idea that the fake electoral votes had a purpose. Although Giuliani and White House speechwriter Stephen Miller made public comments on December 14th suggesting that the uncertified Trump votes were merely contingent, that pretense was dropped in short order.¹¹⁶¹¹⁶ Brett Samuels, “Stephen Miller: ‘Alternate’ Electors Will Keep Trump Election Challenge Alive,” The Hill, (Dec. 14, 2020), available at https://thehill.com/homenews/campaign/530092-stephen-miller-alternate-electors-will-keep-trump-challenge-alive-post/; Steve Bannon’s War Room Radio, “STEVE BANNON’S WAR ROOM RADIO SPECIAL EPISODE582,” BitChute, (aired on Dec. 14, 2020, reposted on BitChute Aug. 22, 2021), at 10:30–13:00, available at https://www.bitchute.com/video/v889V3Thxgcj/.Show full note

¶For example, on December 17th, White House Press Secretary Kayleigh McEnany said on Fox News that in numerous States “there has been an alternate slate of electors voted upon that Congress will decide in January.”¹¹⁷¹¹⁷ Mike Wereschagin, “Pa. Republicans’ Hedged Language May Have Saved Them from Prosecution over Electoral Vote Scheme,” Lancaster Online, (Jan. 17, 2022), available at https://lancasteronline.com/news/politics/pa-republicans-hedged-language-may-have-saved-them-from-prosecution-over-electoral-vote-scheme/article_849d4f7e-7589-11ec-8881-6383a823557d.html. On December 21st, President Trump and Vice President Pence each joined parts of a White House meeting in which Members of Congress from the Freedom Caucus encouraged the Vice President to reject Biden electors from one or more of the seven contested States.¹¹⁸¹¹⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (Mar. 7, 2022), pp. 143–48. And days later, Eastman cited the existence of the fake votes in an email to Boris Epshteyn, a member of the Giuliani legal team, writing, “[t]he fact that we have multiple slates of electors demonstrate[s] the uncertainty of either. That should be enough.”¹¹⁹¹¹⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053475 (December 23, 2020, John Eastman email to Boris Epshteyn and Ken Chesebro).

¶As discussed further in Chapter 5, that email contained Eastman’s 2-page memo proposing a strategy for January 6th based on the incorrect legal theory that Vice President Pence could assert some authority as President of the Senate to prevent or delay the election of former Vice President Biden during the joint session. Eastman’s memo relied on the fake votes, which the memo featured in the very first line: “7 states have transmitted dual slates of electors.”¹²⁰¹²⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053476 (Word Document, “PRIVILEGED AND CONFIDENTIAL January 6 Scenario,” attached in Dec. 23, 2020, John Eastman email to Boris Epshteyn and Ken Chesebro). When Eastman submitted his memo to Epshteyn, he also copied Chesebro, who had edited the memo and called it “[r]eally awesome.”¹²¹¹²¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053475 (December 23, 2020, John Eastman email to Boris Epshteyn and Ken Chesebro).

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¶By that point, Chesebro and Eastman were coordinating their arguments about the fake-elector votes and how they should be used. On January 1, 2021, Chesebro sent an email to Eastman and Epshteyn that recommended that Vice President Pence derail the joint session of Congress. In it, he raised the idea of Vice President Pence declaring “that there are two competing slates of electoral votes” in several States, and taking the position that only he, or possibly Congress, could “resolve any disputes concerning them.”¹²²¹²² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman061863 (January 1, 2021, Kenneth Chesebro email to John Eastman and Boris Epshteyn at 10:26 p.m.).

¶Two days later, Eastman completed his second major memo advising President Trump and his team on strategies for January 6th, again arguing that there were “dual slates of electors from 7 states,” and calling for Vice President Pence to assert power to act “[a]s the ultimate arbiter” to take steps that could overturn the election, either by sending the election back to State legislatures to reassess or by rejecting Biden’s certified electoral votes from States in which there were also fake Trump electors.¹²³¹²³ Both of Dr. Eastman’s memos described here are discussed at length in the chapter addressing President Trump’s pressure on the Vice President. See Chapter 5. See also Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053475, Chapman053476, (Dec. 23, 2020 email titled “PRIVILEGED AND CONFIDENTIAL—Dec 23 memo on Jan 6 scenario.docx” from John Eastman to Boris Epshteyn and Kenneth Chesebro, with attached memo titled “January 6 scenario”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source), CTRL0000923050 (Jan. 3, 2021, John Eastman 6-page memo); John C. Eastman, “Privileged and Confidential–Jan 6 Scenario,” (Jan. 3, 2021), available at https://www.scribd.com/document/528776994/Privileged-and-Confidential-Jan-3-Memo-on-Jan-6-Scenario and embedded at John C. Eastman, “Trying to Prevent Illegal Conduct from Deciding an Election is Not Endorsing a ‘Coup’,” American Greatness (Sep. 30, 2021), available at https://amgreatness.com/2021/09/30/trying-to-prevent-illegal-conduct-from-deciding-an-election-is-not-endorsing-a-coup/.Show full note

¶By early January, most of the fake elector votes had arrived in Washington, except those from Michigan and Wisconsin.¹²⁴¹²⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000417_0001, VP-R0000418_0001 (January 3, 2021 email and attachment from Senate Parliamentarian to Office of the Vice President); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production) 00094 (additional copy of same attachment sent from Senate Parliamentarian to Office of the Vice President).Show full note Undeterred, the Trump team arranged to fly them to Washington and hand deliver them to Congress for the Vice President himself. “Freaking trump idiots want someone to fly original elector papers to the senate President . . .” Wisconsin Republican Party official Mark Jefferson wrote to Party Chairman Hitt on January 4th.¹²⁵¹²⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Andrew Hitt Production), Hitt000089 (January 4, 2021, Andrew Hitt text message to Mark Jefferson at 9:02 p.m.). Hitt responded, “Ok I see I have a missed call from [Mike] Roman and a text from someone else. Did you talk to them already? This is just nuts. . . .”¹²⁶¹²⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Andrew Hitt Production), Hitt000089 (January 4, 2021, Andrew Hitt text message to Mark Jefferson at 9:02 p.m.).

¶The next day, Trump Campaign Deputy Director for Election Day Operations G. Michael Brown sent a text message to other campaign staff suggesting that he was the person who delivered the fake votes to Congress.¹²⁷¹²⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Angela McCallum Production), McCallum_01_001576, McCallum_01_001577 (Michael Brown text message to Angela McCallum at undetermined time); Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Angela McCallum (Dec. 8, 2021), p. 122. After sending the group a photo of his face with the Capitol in the background, Brown said, “This has got to be the cover a book I write one day” and “I should probably buy [Mike] [R]oman a tie or something for sending me on this one. Hasn’t been done since 1876 and it was only 3 states that did it.”¹²⁸¹²⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Angela McCallum Production), McCallum_01_001576, McCallum_01_001577 (Michael Brown text message to Angela McCallum at undetermined time); Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Angela McCallum (Dec. 8, 2021), p. 122. The reference to 1876 alludes to a controversy during that election about certain States’ electoral college votes.¹²⁹¹²⁹ The Select Committee does not know where Brown delivered the fake votes. The Select Committee attempted to contact Brown multiple ways, including by subpoena, but servers could not locate him and he never responded to outreach. The Select Committee served Mike Roman with a subpoena, but he asserted his Fifth Amendment rights and did not answer any substantive questions about the fake-elector scheme. What the Select Committee has determined, however, is that Brown likely delivered the fake electoral college votes to at least one of President Trump’s allies in Congress. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Michael Roman, (Aug. 10, 2022), p. 40.Show full note

¶President Trump and his Campaign apparently had assistance from allies on Capitol Hill for this effort, including Senator Ron Johnson, his chief of staff, and the chief of staff to Representative Mike Kelly, although Senator Johnson has said that “[his] involvement in that attempt to deliver” fake elector paperwork “spanned the course of a couple seconds.”¹³⁰¹³⁰ Jason Lemon, “Johnson Says Involvement With 1/6 Fake Electors Plan Only ‘Lasted Seconds’,” Newsweek, (Aug. 21, 2022), available at https://www.newsweek.com/johnson-says-involvement-1-6-fake-electors-plan-only-lasted-seconds-1735486; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), CTRL0000056548_00007 (January 6, 2021, text message at 8:41 a.m. ET from Matt Stroia to Chris Hodgson); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), CTRL0000056548_000035 (Jan. 6, 2021, text message around 12:37 p.m. ET from Sean Riley to Chris Hodgson) (“Johnson needs to hand something to VPOTUS please advise . . . “Alternate slate of electors for MI and WI because archivist didn’t receive them . . .”).Show full note On the morning of January 6th, Representative Kelly’s then-chief of staff texted an aide to the Vice President, Chris Hodgson, about hand-delivering the fake elector votes to the Vice President’s team before the joint session, a message that Hodgson ignored: “Just following up-any chance you or someone from your team can meet to take the Michigan and Wisconsin packets.”¹³¹¹³¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), CTRL0000056548_00007 (January 6, 2021, Matt Stroia text message to Chris Hodgson at 8:41 a.m.). According to the office of Senator Ron Johnson, Representative Kelly’s chief of staff then had a phone call with Senator Johnson’s chief of staff at 11:58 a.m. “about how Kelly’s office could get us the electors [sic] because they had it.”¹³²¹³² Lawrence Andrea, “Pennsylvania Congressman Concludes Internal Investigation with Few Answers After Ron Johnson’s Claims About False Electors,” Milwaukee Journal Sentinel, (July 14, 2022), available at https://www.jsonline.com/story/news/politics/2022/07/14/few-answers-mike-kellys-probe-into-false-electors-ron-johnson-pennsylvania-wisconsin/10059776002/. Shortly after 11:30 a.m., the Trump Campaign’s lead attorney in Wisconsin had texted Senator Johnson expressing a “[n]eed to get a document on Wisconsin electors to you [for] the VP immediately. Is there a staff person I can talk to immediately.”¹³³¹³³ “The Vicki McKenna Show—Keep and Bear Arms,” iHeart Radio, June 23, 2022, at 9:30–15:00, available at https://www.iheart.com/podcast/139-vicki-mckenna-27246267/episode/the-vicki-mckenna-show-keep-98666092/?position=570&embed=true; John Solomon, “Jan. 6 Panel’s Ron Johnson Narrative Exposes Ills of One-Sided Hearing,” Just The News, (June 23, 2022), available at https://justthenews.com/government/jan-6-panels-ron-johnson-narrative-exposes-ills-one-sided-hearing (linking to image of text message available at https://justthenews.com/sites/default/files/2022-06/TroupisJohnson1.pdf).Show full note Senator Johnson then put his chief of staff in touch with the campaign to handle the issue.¹³⁴¹³⁴ “The Vicki McKenna Show—Keep and Bear Arms,” iHeart Radio, June 23, 2022, at 9:30–15:00, available at https://www.iheart.com/podcast/139-vicki-mckenna-27246267/episode/the-vicki-mckenna-show-keep-98666092/?position=570&embed=true; John Solomon, “Jan. 6 Panel’s Ron Johnson Narrative Exposes Ills of One-Sided Hearing,” Just The News, (June 23, 2022), available at https://justthenews.com/government/jan-6-panels-ron-johnson-narrative-exposes-ills-one-sided-hearing (linking to image of text message available at https://justthenews.com/sites/default/files/2022-06/JohnsonTroupis2Redacted.pdf).Show full note

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¶Senator Ron Johnson, February 12, 2021. (Photo by Samuel Corum/Getty Images)

¶Shortly afterwards, Senator Johnson’s chief of staff texted Hodgson: “[Sen.] Johnson needs to hand something to VPOTUS please advise.”¹³⁵¹³⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), CTRL0000056548_00035 (January 6, 2021, Sean Riley text message to Chris Hodgson at 12:37 p.m. ET). When Hodgson asked what it was, the response he got was, “Alternate slate of electors for MI and WI because archivist didn’t receive them.”¹³⁶¹³⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), CTRL0000056548_00035 (January 6, 2021, Sean Riley text message to Chris Hodgson at 12:37 p.m. ET). Hodgson did not mince words: “Do not give that to him [the Vice President]. He’s about to walk over to preside over the joint session, those were supposed to come in through the mail.”¹³⁷¹³⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), CTRL0000056548_00035 (January 6, 2021, Sean Riley text message to Chris Hodgson at 12:37 p.m. ET).

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¶Those fake electoral votes, which the Trump team tried for weeks to manufacture and deliver, never made it to the Vice President. But they would have been invalid even if they did arrive on time. The Trump team’s activities were based on the false pretense that these fake electoral votes had a decisive role to play at the joint session of Congress. And yet any such role that they could have played would have helped unlawfully obstruct an official proceeding that determines how our Nation carries out the peaceful transfer of power between Presidents.

¶Indeed, as the joint session approached, Senator Mike Lee had expressed grave concerns about the fake elector effort in a series of text messages to one of the Trump team’s senior legal advisors. Although Senator Lee had spent a month encouraging the idea of having State legislatures endorse competing electors for Trump, he grew alarmed as it became clear that the Trump team wanted the fake electors’ votes to be considered on January 6th even without authorization from any State government body.¹³⁸¹³⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM013494, MM014589, MM014592, MM014595, MM014598, MM014722 (Mark Meadows text messages with Sen. Mike Lee on December 8, 2020, January 3, 2021, and January 4, 2021); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Cleta Mitchell Production), CM00015452, CM00015477 (Cleta Mitchell text messages with Sen. Mike Lee on December 9, 2020 and December 30, 2020).Show full note

¶Senator Mike Lee, April 28, 2016. (Photo by Leigh Vogel/Getty Images)

¶On December 30th, Senator Lee texted Trump advisor Cleta Mitchell that January 6th was “a dangerous idea,” including “for the republic itself.”¹³⁹¹³⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Cleta Mitchell Production), CM00015477. He explained that, “I don’t think we have any valid basis for objecting to the electors” because “it cannot be true that we can object to any state’s presidential electors simply because we don’t think they handled their election well or suspect illegal activity.”¹⁴⁰¹⁴⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Cleta Mitchell Production), CM00015477. Senator Lee even questioned her about the plan’s dangerous long-term consequences: “[w]ill you please explain to me how this doesn’t create a slippery slope problem for all future presidential elections?”¹⁴¹¹⁴¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Cleta Mitchell Production), CM00015477.

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