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The point though isn't that there's some magic words that make the same act not a crime. The different words make it not the same act.
If I say "I'll drive to the store if I'm sober," and I don't drive to the store because I'm drunk, that is a fundamentally different act than if I had driven drunk.
The PA group specified that they would act as electors if litigation against the election result was successful. It wasn't and so at no point did they claim to be electors.
If all of the fake electors had done the same thing, there would have been no fake electors.
Yeah, but that's kind of the point. Does Trump have any idea what words the various groups of electors used? Did he talk to them about it in any way? Did he just talk to one of the 'co-conspirators' who was maybe like, "Don't worry, I've been talking to the PA folks, and we've figured out a totally legal and totally cool way to do this," but then at some later point, the other groups either didn't get the memo or disagreed and decided to do things their own way? We'd have to fill in a lot of details here at trial. At the end of this hypo, what we've actually done is drive a potential wedge between the people who had knowledge about the actual criminal behavior and other folks (possibly Trump) who might have just thought, "Oh, somebody's got this taken care of in a legal way." And the prosecution would have to close that gap and show that Trump had actual knowledge of the specific things that are supposedly actually bad rather than the things that are hypothesized to not be actually bad.
I think this complication is why the prosecution would absolutely not agree that the PA way is a legal way. It would make their job of directly connecting Trump to the actually-illegal behavior more difficult. It's much easier to just claim that it was all illegal, there was no possible legal way to do it, and the PA folks are just as guilty as everyone else. Then, perhaps they just need to link Trump to the general scheme.
My point is that even if this theory is correct, I'm pretty confident that the prosecution will not agree. If this theory is correct, it would likely be used by Trump's defense, instead. I'm making no real claim as to whether the theory is actually correct or would be accepted by the courts.
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