Spiegel Stuff: The Gavel: Big decisions pend in ‘fake elector’ cases

By Ella Lee and Zach Schonfeld | Wednesday, October 29

Big decisions pend in 'fake elector' cases

The 2020 election subversion cases are on life support — but they're not dead yet.

In recent months, several blows have been dealt to the remaining prosecutions against President Trump's allies and the so-called "fake electors" who signed documents falsely claiming he won their state's presidential race that year.

Now, the Democratic state attorneys general who brought the charges are barreling toward deadlines to make critical decisions about the future of the cases.

Their choices are to be made in an entirely new political climate than when the charges were initially brought, with Trump — a key figure in the alleged schemes, though in most cases, uncharged — now back in the White House. That could determine whether those involved ever see their day in court.

Let's take a walk down memory lane: You may recall that, after the 2020 election, not everyone was convinced that former President Biden, the Democratic nominee, had prevailed over Trump, the Republican nominee, especially in key battleground states.

Thus, was born the alternate electors scheme, which relied on former Vice President Pence to certify Trump-supporting electors in critical states instead of the true Electoral College votes cast for Biden. The states were Arizona, Georgia, Michigan, Nevada, Wisconsin, New Mexico and Pennsylvania.

Pence declined to do so on Jan. 6, 2021, and a mob of Trump's supporters stormed the Capitol.

Charges were ultimately brought in Arizona, Georgia, Michigan, Nevada and Wisconsin against various Trump allies and "fake electors" over the alleged plot to keep Trump in power, while New Mexico and Pennsylvania prosecutors found it didn't merit an indictment.

Here's where those cases stand now:

Arizona

Arizona Attorney General Kris Mayes (D) faces a decision of whether to press forward with her office's case or let it fizzle out.

Ex-White House chief of staff Mark Meadows, former Trump personal attorney Rudy Giuliani, campaign adviser Boris Epshteyn and more than a dozen others, including the alternate electors, are all defendants.

But a state judge in May ordered prosecutors to return the case to a grand jury, siding with the Republican defendants who argued that Mayes should have provided the panel that indicted them with details about a law explaining how to tally presidential electoral votes that is at the heart of their defense.

"A prosecutor has a duty to instruct the grand jury on all the law applicable to the facts of the case," Maricopa County Superior Court Judge Sam Myers wrote in his order.

Mayes appealed, but an Arizona Court of Appeals panel declined to review the case. She has an extension until Nov. 21 to file with the Arizona Supreme Court.

As we see it, she's left with these options: 1) Attempt to convince the Arizona Supreme Court to let her case move forward, as is, to trial. 2) Return to a grand jury and seek a new indictment. 3) Allow the charges to be dismissed.

Richie Taylor, a spokesperson for the office, declined to comment.

Michigan

Michigan Attorney General Dana Nessel (D) faces a similar fork-in-the-road in her prosecution.

Last month, a state judge dismissed the charges faced by 15 pro-Trump electors after finding insufficient evidence to prove they acted with criminal intent.

Judge Kristen Simmons suggested the defendants were not "savvy or sophisticated enough" to fully understand the electoral process they were accused of manipulating to subvert Biden's election win.

Nessel is still weighing whether to appeal, her spokesperson, Danny Wimmer, told The Gavel.

The standard 21-day window to begin the appeal has passed. But prosecutors could seek permission to file a delayed application, which can be brought up to six months later.

"While we disagree with the district court's decision, we require more than 21 days to carefully consider whether to appeal," Wimmer said.

Wimmer added that the office has requested a transcript of the Sept. 9 hearing where Simmons explained her reasoning because the judge did not issue a written order. They have not yet received it.

That took the 21-day window off the table.

"Once we have the transcript of the district court's ruling, we will decide whether to file an application for leave challenging the district court's failure to bind over the false slate," he said.

June would mark six months from the ruling dismissing the case.

Georgia

In Georgia — the only remaining prosecution over efforts to subvert the 2020 election indicted Trump himself — any path forward would be even more complicated.

That's largely due to Fulton County District Attorney Fani Willis's office (D) being disqualified over a "significant appearance of impropriety" stemming from her romantic relationship with a top prosecutor on the case.

The Georgia Supreme Court last month declined to take up her appeal, ending her bid to remain atop the case against the president, several allies and the state's alternate electors.

Now, Georgia's Prosecuting Attorneys' Council (PAC) faces the Herculean task of appointing a new prosecutor to take on the case. Judge Scott McAfee gave PAC until Nov. 14 to provide a name or see the charges dismissed.

Pete Skandalakis, the agency's executive director, told The Gavel on Monday that "as of today, a conflict prosecutor has not been appointed to the Trump case." He said he was not at liberty to comment further.

Nevada

A fight over venue has tied up Nevada's case against its six alternate electors for more than a year.

Nevada Attorney General Aaron Ford (D) filed his original case in Democratic-leaning Clark County, home to Las Vegas.

But Judge Mary Kay Holthus determined that he chose the wrong venue, ruling that it should have been brought in Carson City, the state capital, where the sham ballots were cast in 2020.

Ford appealed that decision, which was heard by the Nevada Supreme Court in August. It has not yet issued a ruling on the matter.

The statute of limitations passed for one of the two charges, so it must be dropped if Ford loses.

But his office refiled the other charge in Carson City, which a person familiar with the case said was a protective measure to ensure it isn't also lost. If Ford wins, the case will return to Clark County, the person said.

On Monday, the six "fake electors" pleaded not guilty in Carson City, and a trial was set for July. A judge there ruled earlier this month that the case could proceed, calling it the "hardest call I've had to make in my career," according to local reports.

Wisconsin

Wisconsin Attorney General Josh Kaul's (D) case against three Trump allies in Wisconsin appears to be more or less on track.

In August, a Wisconsin judge refused to dismiss charges that two former Trump attorneys and a former campaign aide schemed to submit false paperwork claiming Trump won the state in 2020.

The entire "fake electors" scheme allegedly originated in the state, according to ex-special counsel Jack Smith's office. That case crumbled when Trump won the 2024 election, fair and square.

Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).

Not already on the list? Subscribe here.

IN FOCUS

Execution method shunned; National Guard; shutdown drags on courts

Liberal justices fed up with nitrogen gas executions

The Supreme Court's liberal wing is stepping up its criticism of using nitrogen hypoxia to execute death-row inmates.

Alabama moved to the new method in hopes it would be more humane after concerns had mounted over a series of botched lethal injections in the state.

When the court turned away Kenneth Smith's appeal early last year, making him the first person in the United States to be executed using nitrogen gas, the liberal justices penned short dissents warning the method was untested and risked violating constitutional protections against cruel and unusual punishment.

Several more nitrogen gas executions have come and gone. Some didn't even try to appeal to the high court, while those who did were often turned away without comment.

When Louisiana began using nitrogen in March with the execution of Jessie Hoffman, the liberal justices publicly noted their dissents but didn't write anything. Justice Neil Gorsuch dissented alongside them in light of Hoffman's claims the method substantially interfered with his religious exercise as a Buddhist.

Things intensified last week, when Anthony Boyd urged the Supreme Court to stop Alabama from executing him with nitrogen gas. Boyd was convicted of dousing a man with gasoline and burning him to death in 1993 over a $200 cocaine debt.

On Wednesday night, he became the eighth person to be executed by nitrogen hypoxia after the court rejected his last-ditch effort. And the liberal wing came out swinging with its most pointed critique yet.

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson urged the public to start a stopwatch and watch the seconds tick by until it gets to four minutes.

"Hit stop," Sotomayor wrote. "Now imagine for that entire time, you are suffocating. You want to breathe; you have to breathe. But you are strapped to a gurney with a mask on your face pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you. But your body keeps telling you to breathe."

"That is what awaits Anthony Boyd tonight."

Journalist Lee Hedgepeth, an eyewitness to Boyd's execution, reported it was the longest nitrogen gas execution yet, saying Boyd gasped for air more than 225 times across more than 15 minutes.

Following the execution, Alabama Attorney General Steve Marshall (R) noted Boyd had opted for nitrogen hypoxia in 2018 and said Boyd was "strategically avoiding accountability."

"After 30 years on death row, Anthony Boyd's death sentence has been carried out, and his victim's family has finally received justice," Alabama Gov. Kay Ivey (R) said in a statement.

National Guard cases hit inflection point

The sprawling legal battles over Trump's National Guard deployments are at a critical moment.

The fight in Portland heads to trial Wednesday, while the Supreme Court could rule at any time on the fight in Chicago.

And depending on what the justices do, their decision stands to impact the lawsuits unfolding in cities across the country.

"We're sending in our National Guard, and if we need more than the National Guard, we'll send more than the National Guard, because we're going to have safe cities," Trump told troops early Tuesday in Japan.

"We're not going to have people killed in our cities," he continued. "And whether people like that or not, that's what we're doing."

The Trump administration's primary argument to the high court is that judges have no authority to second guess the president's determination that the legally required preconditions to federalize the National Guard have been met.

The statue requires an invasion, a rebellion or an inability to execute the laws with regular forces.

"In sum, this case falls in the heartland of unreviewable presidential discretion," Solicitor General D. John Sauer wrote to the justices last week.

If the court's conservative majority agrees, it would claw back judges' ability to intervene not just in Chicago, but in Portland and Los Angeles, too.

But if the high court pronounces that judges have authority to assess the facts on the ground, even if Trump is owed some deference, differences between the circumstances in each city could come into play.

Here's the rundown for each city:

Illinois (Deployment blocked): The administration says its deployment is a response to threats and attacks targeting Immigrations and Customs Enforcement (ICE) agents in the Chicago area as part of "Operation Midway Blitz." Much of the activity has focused on protests at an immigration facility in the suburb of Broadview, which has devolved into violence at times. The administration also points to an alleged Chicago gang member recently charged with placing a bounty on an immigration official.

Portland (Deployment blocked – but subject to soon change): Trump says he deployed the National Guard in Portland to similarly address violent opposition to federal immigration officers. But unlike in Illinois, where the facility has been able to remain open despite clashes with protestors, an ICE facility in Portland shut down for three weeks over the summer. The administration says officers have been threatened, doxxed and trapped in their cars at times, and city police have refused to intervene.

Los Angeles (Deployment active): Trump deployed the National Guard to Los Angeles in June as the city became an epicenter of the administration's immigration crackdown. Trump cited a need to protect a series of federal properties in the city's downtown that had been the subject of protests that at times turned violent. Guardsmen have also accompanied immigration agents as they make arrests and raids in the Los Angeles area. Though most of the troops are no longer deployed, some remain. The case has now raised questions about whether Trump's deployment order remains valid given the current conditions, even if it was valid back in June.

Washington, D.C. (Deployment active): Trump deployed the D.C. National Guard as he declared a crime emergency and sent a flood of federal law enforcement to patrol the city's streets. Republican governors from several states have also sent National Guard units to the nation's capital. As opposed to the other lawsuits, The president retains greater control over the D.C. National Guard legally. He deployed the troops under separate legal authority that doesn't require a rebellion or other preconditions. The city's attorney general still contends it violates another other federal law.

As the Trump administration awaits word from the Supreme Court in the Illinois case, U.S. District Judge Karin Immergut, a Trump appointee, will commence a trial Wednesday afternoon over the Portland deployment.

Court filings indicate the trial will include testimony from the National Guard Bureau's second highest-ranking official, representatives from city and state police, the director of ICE's Portland office and an official who helps manage protection of federal facilities in Oregon.

Frustrations mount as shutdown drags on

It's been nearly one month since the government shutdown began, and an end is nowhere in sight.

The legal system is getting antsy to move on.

Federal courts held out longer than most of the federal government, announcing that the judiciary's coffers would be emptied by the start of last week. The lapse in funding meant judges would continue to be paid, but court staff would face either furlough or continue to work on a limited basis, without pay.

Meanwhile, defense attorneys for criminal defendants who cannot afford lawyers have already seen months go by without pay due to an early depletion of funds appropriated for them, and plaintiffs challenging government policies have sometimes seen their cases slow down or grind to a halt.

Now, for the 13th time, Senate Democrats have blocked the House-passed bill to reopen the federal government, leaving little hope that the strain on the legal system will soon be resolved.

On the first day the federal courts operated without funds, Oct. 20, an appeals panel began arguments over the validity of Alina Habba's installation as New Jersey's top federal prosecutor by acknowledging their staff who were no longer being paid.

"Having gone through, during 37 years as an Article III judge, a couple of shutdowns before, this has perhaps been the most frustrating, given the lack of dialog," Judge D. Brooks Smith said, thanking the "court family" for showing up, regardless.

As the shutdown drags on, the Administrative Office of the U.S. Courts has warned that delays in courthouses across the country could be imminent.

Though judges have rejected Justice Department requests to halt proceedings in some of the most high-profile cases against the Trump administration, cases from DOJ's antitrust litigation against Amazon and Apple to a New Mexico death penalty prosecution have been paused.

A federal judge last week also vacated an upcoming hearing where he planned to consider cross-motions in U.S. Copyright Office director Shira Perlmutter's challenge to her firing, citing the shutdown. The administration filed an emergency application with the Supreme Court on Monday seeking to let the president refire her.

Most federal appeals courts have said they plan to keep their schedules intact, albeit hearing more cases virtually, but signaled that could change if the shutdown persists.

The U.S. Court of Appeals for the 1st Circuit, for example, says on its website that all of the cases calendared for oral argument this week in San Juan, Puerto Rico, and next week in Boston, Mass., will go forward as scheduled but does not address what happens after that. The Gavel reached out for comment.

The Supreme Court, too, ran out of funds earlier this month, prompting it to close its doors to the public "until further notice." Official business remains ongoing.

And the shutdown has only added to existing funding issues.

In July, the Administrative Office of the U.S. Courts rang the alarm about a "funding crisis" caused by the early depletion of Criminal Justice Act (CJA) panel attorney funds.

The CJA, alongside the Constitution, guarantee criminal defendants the right to effective counsel regardless of their economic status.

At the time, the office said that right was at risk because of the funding lapse. It's even more dire now as nearly four months have passed without appropriated funds.

In September, days before the shutdown began, a lawyer raised the issue in a hearing for one such defendant: Elias Rodriguez, the man accused of fatally shooting two Israeli Embassy staffers earlier this year.

Defense attorney Eric Klein, a member of the CJA panel for U.S. District Court for the District of Colorado, who is representing Rodriguez, said he and his federal defender co-counsel had been "drinking from a firehose" and noted he had not been paid "a dime" via CJA funds. He joked that the judge should look through his chambers for change.

With fewer CJA panel attorneys being paid, that constitutionally mandated work could fall to public defenders.

Janet Mitchell, special counsel to the D.C. Public Defender Service's (PDSDC) director, said in a statement that the office remains "fully committed" to providing the required representation to its clients as the shutdown persists.

She added that PDSDC hopes for a "swift resolution" to the shutdown so it can resume normal operations and ensure its staff are paid.

The mounting frustration across the legal system is widely shared by those outside it.

On Monday, the largest union representing federal workers called for an end to the government shutdown.

"Both political parties have made their point, and still there is no clear end in sight," said Everett Kelley, national president of the American Federation of Government Employees (AFGE).

The judge overseeing AFGE and other unions' lawsuit challenging the administration's bid to conduct reductions-in-force amid the shutdown expressed frustration at a hearing earlier this month, saying that that the planned RIFs, to be pinned on the lapse in funding, were "by all appearances...politically motivated." On Tuesday, she blocked the layoffs indefinitely.

Even the Senate's elected spiritual counselor appeared fed up Monday, offering a pointed opening prayer.

"Lord," said Senate Chaplain Barry Black. "Remind our lawmakers that no gold medals are given for breaking shutdown records."

SIDEBAR

5 top docket updates

James enters plea and trial set: New York Attorney General Letitia James (D) pleaded not guilty to charges of bank fraud and false statements to a financial institution over allegations she misrepresented her plans for a Virginia home, allowing her to obtain favorable loan terms. A trial was set for Jan. 26.
Betting breakdown: Three NBA players and coaches were among more than 30 people indicted by federal prosecutors as part of a large-scale illegal betting investigation linking the sports figures with organized crime families.
Abrego Garcia deportation fight: The Justice Department floated sending mistakenly deported man Kilmar Abrego Garcia to Liberia, after the West African nation agreed to take him.
Dem states sue over SNAP lapse: Democratic officials from Washington, D.C., and 25 states sued the Trump administration for not using a contingency account to fund Supplemental Nutrition Assistance Program benefits next month.
Copyright director fight at SCOTUS: The Trump administration asked the Supreme Court to allow it to fire the nation's top copyright official. It marks the administration's 30th emergency appeal to the justices since taking office.

In other news

State charges for Santos? A state prosecutor seemed to signal that local charges could be brought against former New York Republican Rep. George Santos, after his prison term was cut years short by Trump's commutation of his sentence.
Bling behind bars: French police have made their first arrests in connection with the jewelry heist at the Louvre Museum in Paris, the New York Times reported. It was not immediately clear how many people were taken into custody or whether any of the stolen jewelry, worth more than $100 million, had been recovered.
Anotha one: Lawyers arguing before the U.S. Court of Appeals for the 6th Circuit made apparent references to a third Trump term, saying that a new administration would be in place "in three years or in seven years," or some iteration of that remark, Bloomberg Law reported. It follows Trump's own suggestion that a third term could be in his cards, despite it being barred by the Constitution.

ON THE DOCKET

Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:

Today

A federal judge in Oregon is set to begin a three-day bench trial over whether Trump's National Guard takeover violated a provision of Title 10, which allows presidents to call the troops into federal service under some circumstances, and the 10th Amendment.

Thursday

Former FBI Director James Comey is expected to file his second round of pre-trial motions.
A federal judge in Washington, D.C., is set to hold a pretrial conference for Sean Charles Dunn, the man who allegedly threw a sandwich at a federal officer and became an opposition symbol of Trump's local crime.

Friday

A federal judge in Florida is set to hold a status conference in Trump's lawsuit against the Wall Street Journal over its story about the president's apparent letter in disgraced financier Jeffrey Epstein's birthday book.

Monday

The Supreme Court will hear oral arguments over whether a defendant can receive credit or supervised release time when they are a fugitive. The case is Rico v. United States.
The justices will also hear oral arguments over whether a former Army specialist injured by a suicide bomber at a U.S. airfield in Afghanistan sue the contractor that employed the bomber. The case is Hencely v. Fluor Corporation.
The U.S. Court of Appeals for the 5th Circuit is set to hear oral arguments in the Trump administration's effort to reinstate a federal anti-money laundering law.
The trial for Dunn, also known as "sandwich guy," is set to begin.

Tuesday

The Supreme Court will hear oral arguments over whether the time limit to wipe a void judgment applies when there is no personal jurisdiction. The case is Coney Island Auto Parts Unlimited Inc. V. Burton.
The justices will also hear oral arguments over whether a federal judge's ruling ending a lawsuit against Hain's baby food over alleged heavy metal contamination may stand. The case is The Hain Celestial Group, Inc. v. Palmquist.
A federal judge in Tennessee is set to hold a two-day hearing over various motions in the criminal case of mistakenly deported man Kilmar Abrego Garcia, including the defendant's motion to dismiss the case.