It was the fake elector scheme that underpinned former President Donald Trump’s attempt to overturn the 2020 election and on Tuesday, new emails emerged exposing in greater detail how that plot unfolded among some of Trump’s advisers and campaign staff in the weeks ahead of the Capitol attack.
The New York Times was first to report the development, citing previously unpublished emails that flowed between Trump’s strategic adviser, Boris Epshteyn; members of Trump’s reelection campaign, Mike Roman and Gary Michael Brown; and lawyers for Trump, including John Eastman, Rudy Giuliani, James Troupis, Jenna Ellis, Bruce Marks, Christina Bobb; and others.
The Times also reported, importantly, that these emails acknowledging the electors as bogus were “apparently not shared with lawyers in the White House counsel’s office.”
Many of Trump’s official White House lawyers stood firm for weeks on their guidance to the former president and members of his staff that “alternate” slates were not a legally viable path forward.
One lawyer, Jack Wilenchik of Arizona, referred to the so-called Trump electors as outright “fake” in his emails to Epshteyn. His language was blunt on Dec. 8, 2020. There was just a week until the Dec. 14 deadline for states to deliver their certificates to the National Archives.
“We would just be sending in ‘fake’ electoral votes to Pence so that someone in Congress can make an objection when they start counting the votes, and start arguing that the ‘fake’ votes should be counted,” Wilenchik wrote.
Wilenchik was helping to organize pro-Trump electors in Arizona.
He thought better of the description in a follow-up email to Epshteyn, writing: “‘alternative’ is probably a better term than ‘fake’ votes.”
He punctuated that thought with a smiley face emoji.
Not only did Wilenchik acknowledge the “fake” element, but critically, the email also exposes how there were plans to keep the fake electors “under wraps until Congress counts the vote Jan. 6th.”
“So we can try to ‘surprise’ the Dems and media with it,” Wilenchik wrote.
Additionally, per the Times:
“The emails provide new details of how a wing of the Trump campaign worked with outside lawyers and advisers to organize the elector plan and pursue a range of other options, often with little thought to their practicality. One email showed that many of Mr. Trump’s top advisers were informed of problems naming Trump electors in Michigan — a state he had lost — because pandemic rules had closed the state Capitol building where the so-called electors had to gather.”
The idea of “separate” or “alternate” slates had been percolating for some time.
It started as early as Nov. 4, when Trump’s former energy secretary Rick Perry shot a text to Trump’s chief of staff Mark Meadows proposing an “aggressive strategy” to have states “just send their own electors to vote.” Donald Trump Jr. made that proposal to Meadows, too, and lawmakers like Rep. Andy Biggs and Sen. Mike Lee joined in the chorus as well as others. All of this was revealed as part of the more than 2,000-text-message-strong trove that Meadows handed over to investigators on the Jan. 6 committee.
By mid-November 2020, Trump campaign attorney Kenneth Chesebro mocked up a memorandum that proposed Jan. 6 as the “real” and “hard” deadline for electors to be counted, a project he took on at the request of James Troupis as attempts by Trump to beat back his defeat in Wisconsin continued in court.
Chesebro’s memo was shared with Troupis, who shared with it Giuliani, who later shared it with John Eastman. The same theories in Chesebro’s memo would morph into the primary argument adopted by Eastman in his six-point memo for Trump that incorrectly claimed Pence had the constitutional authority to reject certified electors during the joint session.
According to testimony before the Jan. 6 probe from Pence’s counsel Greg Jacob, Eastman would inform Trump 48 hours before the insurrection that the proposal to have Pence waylay the count was a likely violation of the Electoral Count Act. But Eastman had been critical of the plan long before Jan. 4, 2021.
In a Dec. 19, 2020, email, court records show Eastman admitting that “fake electors had no legal weight” and that he saw the bid as "dead on arrival in Congress.”
He pushed it anyway.
When Wilenchik emailed Epshteyn on Dec. 8, he noted how the pro-Trump slates weren’t “legal under federal law because they’re not signed by the Governor,” and he noted how Chesebro pushed to have Trump’s electors arranged in each battleground state.
This would prompt Congress to “fight about whether they should be counted on Jan. 6,” Wilenchik wrote. “Kind of wild/creative—I’m happy to discuss. My comment to [Chesebro] was that I guess there’s no harm in it, legally at least. i.e. we would just be sending in ‘fake’ electoral vote to Pence that ‘someone’ in Congress can make an objection when they start counting votes and start arguing that the ‘fake’ votes should be counted.”
In an email from Dec. 12—just four days after Wilenchik expressly mentioned to Epshteyn that the slates were not legal—lawyer Christina Bobb talked up the need for Giuliani to convince Trump’s point people in battleground states that their plans were legitimate.
Doug Mastriano, a Trump stalwart and current Republican nominee for governor in Pennsylvania, was one such cynic at the time. He was a designated point person for the Trump campaign there, the Times reported Tuesday.
“Mastriano needs a call from the mayor. This needs to be done. Talk to him about legalities of what they are doing," Bobb wrote.
She later added: “Electors want to be reassured that the process is * legal * essential for greater strategy.” [Emphasis original]
This email would be followed just one week later by an explosive and now infamous meeting at the White House on Dec. 18.
At that meeting, Trump, Giuliani, lawyer Sidney Powell, former national security adviser Michael Flynn, former Overstock.com CEO Patrick Byrne, and Trump’s White House attorney Pat Cipollone nearly came to blows after an hours-long argument ensued over plans to make Powell special counsel and put her in charge of contesting election results.
Other emails emphasized how some of Trump’s lawyers, like Troupis, were intent on having Pence step in.
“Our strategy, which we believe is replicable in all 6 contested states, is for the electors to meet and vote so that an interim decision by a Court to certify Trump the winner can be executed on by the Court ordering the Governor to issue whatever is required to name the electors. The key nationally would be for all six states to do it so the election remains in doubt until January,” Troupis wrote.
Some of the pro-Trump electors who attempted to forward the bogus slates were warned to add disclaimers on their certificates that clarified they were mere “electors-in-waiting” if Trump’s court battles contesting the results won out. Trump never won those battles.
Grand jury subpoenas and search warrants have been issued extensively in recent weeks as part of the Justice Department’s criminal probe into Jan. 6. The fake elector plot has been a reported central focus for the DOJ. Dozens of agents have served subpoenas to individuals in Georgia and Arizona, and Michigan since at least June. The new emails obtained by the Times come just 24 hours after it was confirmed publicly that subpoenas were sent to Karen Fann, president of the Arizona Senate, and Arizona state Sen. Kelly Townsend.
Those subpoenas sought any emails in which Fann or Townsend spoke to members of Trump’s administration, campaign, or legal team, including, specifically, correspondence with Boris Epshteyn, John Eastman, James Troupis, Rudy Giuliani, Kenneth Chesebro, Mike Roman, and others.