There have been few criminal defenses in history less helpful than ones based on the phrase "I was just following orders." If that's the defense Georgia Republican Party Chairman David Shafer is really choosing to pursue as investigators close in around the fake electors scheme that Donald Trump-allied Republicans tried to use to nullify the 2020 presidential elections, you can bet it's because there's absolutely no better defense Shafer's lawyers could scrounge up.
CNN and The Atlanta Journal-Constitution report Shafer's attorneys have said that Shafer was following the "repeated and detailed advice" of Trump's legal team when he gathered up a team of so-called "contingent" Republican electors and appointed himself as one of them. So they said to Fulton County District Attorney Fani Willis, whose office is investigating the fake electors plot as they probe other attempts by Trump and the Republican Party to override Georgia's official election results.
Shafer's lawyers told Willis in a letter sent last week that Trump's legal team had given him "very direct, detailed legal advice on the procedure he should follow, and he followed those instructions to the letter." Shafer was following the instructions of "legal counsel," says Shafer's new legal counsel. This "eliminat[es] any possibility of criminal intent or liability" in forming a new slate of "electors" inside a Georgia state house committee room on Dec. 14, 2020 to vote for Donald Trump even as the officially designated Georgia electors cast their votes for Joe Biden elsewhere in the statehouse.
Got it? Trump's lawyers told him to do it, so it can't possibly have been illegal! He was just following their orders!
That is extremely not how any of this works, of course; there is no special law school exemption that allows you to commit crimes, no matter how many of Donald Trump's past, present, and future lawyers believe it to be so. You don't get to, say, attack the United States Capitol because some spittle-flecked Trump legal gadfly told you on television that it would be okay. There is no such thing as a lawyer-written permission slip for actual criminal acts.
Whether Shafer's acts really do amount to a criminal conspiracy remains to be seen. Similar teams of "alternate" electors from other states appear to be in very hot water because they signed statements asserting they were genuine electors, which Republicans then attempted to smuggle into the Capitol to present to then-Vice President Mike Pence during the joint session of Congress called to count electoral votes and certify the final tally. Those who submitted lists of "alternate" electors never certified by their own states but nonetheless attempted to pass them off as the "real" electors of the state were unequivocally attempting fraud. It is arguably a seditious conspiracy considerably more impactful than even the violence of Jan. 6. Georgia's attempt does not appear to be meaningfully different from the attempts in other states.
Shafer's only actual defense may be that he himself was misled as to what Trump's legal team and other Republicans were going to do with his fake "electoral" votes. He could claim that Trump's team lied to him. But that's not quite what he's arguing. The Journal-Constitution notes that Shafer has claimed he had "no knowledge" of the Republican plot to substitute the uncertified "alternate" electors for the real thing on Jan. 6, with then-Vice President Mike Pence's theoretical help.
That's a pretty sketchy claim for Shafer to make, because that very plan was being widely circulated at the time. The Trump-connected Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, was one of many Republicans who encouraged Arizona lawmakers to throw out their state election results to choose "a clean slate of Electors." That was on Nov. 9, 2020, many weeks before Shafer's band of electors met to do exactly the same thing. Nor could Shafer plausibly be unaware of Donald Trump's own calls to state officials to pressure them into overturning the election's results.
And, if nothing else, the request from Team Trump that Shafer gather his fake electors to meet in "complete secrecy" should have been a pretty damn big clue that something was crooked.
Shafer's deepest legal troubles may stem from a more prosaic cause, however. At least eight of Shafer's 15 fellow fake "electors" have now agreed to testify in exchange for immunity after Willis warned them they were criminal targets of her investigation. It's almost certain that questions about how Shafer convinced them to sign on as "electors" and what claims he himself made in doing it will be a main focus for investigators.
Shafer might himself be probing for an immunity deal. It's not very likely he'll get one if Willis already has half of the supposed electors willing to testify while he's still asserting ignorance. The "just following the advice of Donald Trump's lawyers" is, however, quite possibly the worst defense anybody in America has ever offered up in response to anything. If that's all he's got in his defense, he's got nothing.
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