Members Only | January 14, 2022 | Reading Time: 3 minutes
Yes, it’s absurd, but fraudulent certificates are still fraudulent
Coverage of the latest from the J6 committee lacks urgency.
The J6 committee is publicly opening a new front in its investigation of the insurrection: Donald Trump’s massive pressure campaign to overturn the election at the state level.
Thanks to open records requests by Nicholas Wu of Politico, we know that the J6 committee is looking at fraudulent certificates of ascertainment submitted by Republicans in the Biden swing states purporting to cast their electoral votes for the former president.
What wasn’t apparent at the time was that John Eastman had a plan to use these fraudulent electoral votes as grist for a procedural coup.
The liberal nonprofit American Oversight obtained five fraudulent certificates through an FOIA request to the National Archives and Records Administration (NARA), the agency that keeps track of Electoral College paperwork.
As MSNBC’s Rachel Maddow observed, the fraudulent documents are strikingly similar in language and in formatting, as if they were based on a common template, which raises the question of who might have written it.
Let’s take a closer look at the scam.
As we all know from civics, we don’t really vote for the president, but rather for a slate of electors in our state’s Electoral College, who are pledged to vote for our candidate.
On December 14, 2020, the winning slates cast their votes in their respective state capitols. That same day, Republicans in seven Biden swing states held sham votes for Trump.
Disturbingly, these fake voters were mostly real Trump electors who had been sidelined because Trump lost their states. These weren’t just randos cosplaying as electors. They were public officials who betrayed their position of trust.
The results of these sham votes for Trump were memorialized as fraudulent “certificates of ascertainment” and sent to Mike Pence as president of the Senate and to other federal and state officials. We know from Trump lawyer John Eastman’s notorious memos that Team Trump had big plans for those fraudulent slates of electors.
In the run-up to the J6 insurrection, Eastman wrote two notorious memos outlining how Trump could use baseless allegations of mass voter fraud as a pretext to steal the election during the certification ceremony (aka the long memo and the short memo).
The long memo begins with the observation that seven states have sent dual slates of electors to Mike Pence as president of the senate. It was Pence’s prerogative, Eastman insisted, to accept or reject electoral votes at his whim.
“The president of the Senate does the counting,” Eastman falsely asserted, “[…] and all the Members of Congress can do is watch.” According to Eastman, if a state legislature defied its governor and “certified” a fraudulent slate, Pence could simply ignore the real votes and count the fake ones.
In fact, no state legislature succumbed to Trump’s pressure to certify the fraudulent electors. But Eastman had planned for that.
If the election went to the House, the GOP was expected to prevail, provided the Republicans in Congress went along with the coup. Perhaps the mob’s role was to inspire that kind of fortitude in the House GOP caucus.
Pence’s remaining option, per the memos, was not to count any electoral votes from the Biden swing states. This move would supposedly result in Trump winning outright, or in a tie that would be decided by the House. (Win vs. tie came down to a dumb semantic debate over whether an elector whose vote was discarded by Pence could truly be said to have been appointed in the first place.)
But regardless, if the election went to the House, the GOP was expected to prevail, provided the Republicans in Congress went along with the coup. Perhaps the mob’s role was to inspire that kind of fortitude in the House GOP caucus.
The state-level machinations to send fraudulent electors were no great secret in the run-up to J6. Trump advisor Steven Miller announced on Fox that Republicans were voting to send alternative slates of electors to Congress.
The Nevada GOP boasted about its fake vote on its website and indicated that it expected Congress to decide which slate of electors to count. Arizona Republican activist Lori Osiecki bragged that her group decided to hold its own vote after a daylong meeting with Rudy Giuliani.
The fraudulent electors scheme got mainstream media coverage, but that coverage lacked a sense of urgency or outrage. Impersonating a state’s electors and sending fake certificates to the government attesting to fraudulent electoral votes is almost certainly illegal.
But the media focused on the absurdity as opposed to the likely illegality.
In fairness, it was tough to take the Republican’s gambit seriously because everyone knew that only a certificate of ascertainment signed by the governor carries any legal weight. A certificate signed by a bunch of self-appointed rogue electors seemed as likely to succeed as a real estate deal backed by Monopoly money.
What wasn’t apparent at the time was that Eastman had a plan to use these fraudulent electoral votes as grist for a procedural coup. Nor did the mainstream media anticipate the wildcard of mob violence.
The procedural coup failed largely because Mike Pence refused to play his assigned role, but the underlying vulnerability is still there.
Next time, we may not be so lucky. The details of the state-level pressure campaign will surely be a fertile field for the J6 committee to till.
Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.