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I don't believe this is true. Even if you think fraud has occurred, you can't just appoint electors based on what you think the result would have been. There's a process that has to be followed.
Even if Trump believes that the process has been corrupted, it's still illegal for him to solicit a public official to subvert the process.
By analogy, let's say I buy a lottery ticket but then someone steals it from me. The lottery gets drawn, and I am convinced I had the winning numbers. The lottery won't pay me out based on my insistence that I would have had the winning numbers if they hadn't been stolen. I am not then allowed to rob the lottery office to rectify the theft I suffered - even if I am correct that I had the numbers.
Now, perhaps I am misunderstanding the law in some important way here - I am not a lawyer, and much less a Georgia lawyer. But my understanding here is that the effort to solicit a public official in a plan to appoint electors who could not be lawfully appointed is straightforwardly illegal.
The electors aren't fake either way. They are proposed alternative electors, which is how past elector disputes have been done. There was never any conspiracy to present them as the primary electors.
The irregular Georgia electors submitted a "Certificate of Vote" to Pence's office where they claimed to be the primary electors, as did the irregular electors in Arizona, Michigan and Nevada. The irregular electors in Michigan are being prosecuted locally for falsifying an official document. It looks like most of the irregular electors in Georgia have rolled and are going to testify against Trump.
The irregular electors in New Mexico and Pennsylvania worded their certificates to be contingent on their later being determined to be the real electors, which keeps them out of legal trouble, but means the certificates are less useful for the Eastman/Chesebro scheme to have Pence overturn the election on Jan 6th.
Aha! The whole time I was writing about the Georgia charges, I was thinking “this wouldn’t have been a criminal charge if they’d covered their asses better.” It’s good to know some of the other groups agreed.
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Others disagree -- there was an arguably legal path to this, and it has happened in the past. Obviously much depends on the particulars, but criminalizing the advancement of legal theories which may or may not apply in a given case seems like a bad idea. (not to mention conflicting pretty badly with the first amendment)
But you are allowed to write a letter to the head of the state lotto suggesting that they should give you the money -- you can even go to the press and say that's what they should do!
If this is true, then everyone who issued tweets encouraging faithless electors in 2016 is also straightforwardly guilty.
Do members of the electoral college swear an oath of office to uphold the constitution? Does Georgia have a law requiring electors to cast their votes according to the election results? These are serious questions, I sincerely don't know.
If they do, and a person called an elector from Georgia and asked them to violate the law by being a faithless elector, then yes it does appear that such a person would be straightforwardly guilty.
No - among other places, this is discussed in Baude essay on Section 3, because it creates an interesting lacuna (a presidential elector who engages in an insurrection is not disqualified from future office, but an oath-taking officer who engages in an insurrection is disqualified from being a presidential elector).
No - see here (although that is the status now, not as of 2020). According to that map, the only states where being a faithless elector is a crime (and thus the only ones where secondary liability for advocating a crime could conceivably trigger) are both Carolinas, New Mexico and Oklahoma. The more normal approach is to declare the faithless elector's vote void and to allow the other electors for that state to replace them.
In addition, a rando tweeting into the aether would be protected by the 1st amendment in a way that a high government official making a personal phone call to an individual elector backed up by detailed (false) arguments of why the election was fraudulent and vague threats of criminal prosecution for covering up the fraud would not be - the law distinguishes between non-serious and serious crime-encouraging speech.
Not sure whether things were much different in 2016, but I do seem to recall some electors not from any of those states being penalized -- it's irrelevant though.
Regardless of which states attach penalties, electors in most (all?) states do in fact swear an oath to vote according to the results in their state -- the debatable part would be whether they can be considered "public officials" -- which I'd argue against, but "parts of this indictment are based on debatable legal theories" does not seem to be holding anybody up in this business!
Anyways, if you acknowledge that certain states would consider faithless electorism to be some kind of crime, even one would be enough -- this was very much a nationwide, organized, and well funded advocacy exercise: https://en.wikipedia.org/wiki/Faithless_electors_in_the_2016_United_States_presidential_election#Public_outreach_to_electors
A conspiracy, if you will! So while random twitterati might squeak by on whatever's left of the 1A, I think your assertion that (say) The Hamilton Electors would be in a different position here than Trump and his cohorts is unsupported.
(I'd say it's actually somewhat worse in that their justification was not "We think Trump committed fraud" but rather "We don't like Trump and want to subvert the will of the voters", and also that they actually succeeded in flipping some electors! At least a few were fined as I recall.)
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Thank you!
I find it a bit bemusing when people pose these questions with the implication that if someone in a somewhat-similar-but-somewhat-different situation wasn't charged with the same crime, there must be some kind of corruption or double standard. Most the time it's just that details are different and details matter.
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Biden swore to uphold the Constitution, but created the "Covid" eviction moratorium, which was unconstitutional. If he asks someone to violate the law by preventing a landlord from getting rid of a tenant, is he straightforwardly guilty?
Under OCGA 16-4-7? I wouldn't think so, no. I don't believe that a landlord failing to evict a tenant would constitute a felony.
Was there some other statute you were thinking of? If so you'll need to point me to it.
He'd hypothetically (or maybe not so hypothetically) be telling the government to fine or arrest landlords who do evict their tenants.
Who exactly is "the government" in this context?
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On the tweeting for faithless electors that gets a lot of Logan Act vibes. Where if that was a crime then everyone is guilty whoever once tweeted about geopolitics
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