Fake Crocodiles and Fake Electors in Fulton County

Editor’s note: The following is a dispatch from a hearing held on Sept. 20, the latest episode in Lawfare’s series of dispatches on the Fulton County district attorney’s criminal case against former President Donald Trump and 18 others.

It’s a Wednesday morning in Atlanta, and I am once again at the federal courthouse, once again talking to Donald Trump’s attorney about crocodilian reptiles as we wait for another hearing on whether the former president’s co-defendants can move their criminal cases in Fulton County to federal court.

History may not repeat itself, but it sure does rhyme.

I’m seated at a table in the court’s cafeteria, eating a very Southern breakfast (stone-ground grits) with the clutch of reporters who are here to cover the hearing. Trump’s attorney, Steve Sadow, has just arrived, sporting a light blue suit paired with cowboy boots. As he finds a seat at a table on the other side of the room, I inquire about which animal he is wearing on his feet today.

The blue-leather boots, he tells me, are made from the skin of Nile crocodiles (Order: Crocodilia. Family: Crocodylidae. Species: Crocodylus niloticus.).

I ask Sadow how many pairs of cowboy boots he owns. “Twenty-two,” he mouths from across the room.

Then the man seated at a table to my left pipes up: Don’t tell them about the boots you made from the hide of the croc you killed yourself, he warns Sadow. It’s Craig Gillen, defense counsel for former Georgia Republican Party Chairman David Shafer, who was indicted alongside Trump in Fulton County.

Gillen, as it turns out, is kidding. Before members of the press can so much as conjure the image of Donald Trump’s attorney wrestling a 700-pound crocodile to the death to make boots out of it, Sadow corrects the record: He has never personally gutted a crocodile in fashion’s name.

This is how “fake news” spreads, the reporter next to me quips.

That an attorney for an alleged fake elector would be conjuring fake news about making fake crocodiles into fake boots seems somehow fitting. Because only a few minutes later, Gillen is in court arguing that the law should treat the fake crocodiles, I mean electors, as real federal government  employees and remove their case to federal court.

The alleged fake electors in question include Gillen’s client, Shafer, and two of his co-defendants: a Georgia state senator, Shawn Still, and the former Chairwoman of the Coffee County GOP, Cathy Latham. Like their co-defendants who have similarly sought to transfer the Fulton County case to federal court, these three need to establish three things at today’s hearing. The first is that they must show that they were “federal officers” at the time of the alleged offense. The second is that they did the alleged conduct under “color of office.” The third is that they have raised a colorable federal defense against the charges.

It’s a few minutes past the scheduled 9:30 a.m. start time when Judge Steve Jones sweeps into the room as a court officer shouts “All rise!” After delivering his characteristic greeting (“Good morning, y’all”), Judge Jones kicks things off by directing counsel for the defense to commence its presentation.

At this, Gillen trods to the lectern, where he explains to Judge Jones that defense counsel have joined forces for the purpose of today’s argument. For that reason, he says, he’ll provide opening remarks on behalf of the whole group before handing matters over to the other attorneys to address the three factors required under the removal statute.

Then Gillen launches into his opening monologue. “What bugs me,” he tells Judge Jones, is that the defendants in the present matter have been labeled by the state and media as “fake,” “sham,” “impersonators.” But under federal law, he stresses, they were not “fake,” “sham,” “impersonators.” They were “contingent” electors who, on Dec. 14, 2020, simply “did their duty.”

According to Gillen, the defendants’ conduct on Dec. 14, 2020, was “necessary” under federal law because the state of Georgia did not meet the Electoral Count Act’s “Safe Harbor deadline,” which sets out circumstances in which Congress must conclusively accept a slate of electoral votes. Specifically, the then-existing version of 3 U.S.C. § 5 provided that if state law has specified procedures to settle election contests about electoral votes, and if those procedures have been applied, and if the results of that contest have been decided by the “Safe Harbor deadline,” then the outcome of that contest “shall be conclusive” as to which electoral votes will be counted during the joint session of Congress on Jan. 6.

As Gillen tells it, the State of Georgia did not meet the Dec. 8 “Safe Harbor” deadline during the 2020 election because, at that time, there was litigation pending in Georgia courts that sought to contest the results of the election. Because the state failed to meet this deadline, he contends, it lost the right to claim that the democratic slate of electors certified by Georgia Governor Brian Kemp should “conclusively” be counted during the joint session on Jan. 6. As such, he claims, both the Democrat and Republican electoral slates from Georgia were “contingent.”

Gillen then announces that he has a PowerPoint presentation to display for the court. There’s a long pause as Gillen and his co-counsel work out how to share the slides, but their presentation eventually materializes on the monitors strategically placed around the room. “I hope this doesn’t reflect on the merits of our legal argument,” Gillen jokes about the technical difficulties.

With the assistance of the PowerPoint, Gillen walks through several statutes and provisions of the U.S. Constitution that govern the electoral college. While acknowledging that state law governs the “appointment” of electors, he emphasizes that federal law governs how electoral votes should be counted. To that end, he explains, the Safe Harbor provision of the Electoral Count Act (ECA) is “critical.” In Gillen’s view, that provision of the statute provides states with a method by which they can ensure that certain electoral votes are counted. But if a state misses that deadline, then the ability to decide who the electors are falls to Congress under federal law. In support of this proposition, he points to a separate provision in the ECA, 3 U.S.C. § 15 which provides that during the joint session of Congress on Jan. 6, the President of the Senate shall open papers “purporting to be certificates of the votes of electors.” This provision, Gillen claims, indicates that the law contemplates a scenario in which there are two competing slates of electors.

And that is precisely what happened with respect to Georgia’s electoral votes during the 2020 election, Gillen contends. As such, he continues, Georgia’s Democratic electors had “no better argument” that they were the state’s Presidential electors than did Shafer, Latham, and Still. The law, he tells Judge Jones, provides that they weren’t “fake,” “sham,” “impersonators.” They were “contingent” electors just like the electors who voted for Joe Biden, Gillen concludes.

As Gillen strides back to his seat at the defense table, Thomas Beaver makes his way to the lectern on behalf of his client, Still, and his client’s co-defendants. He intends to address the first prong of the multi-factor test for removal, which requires the defendant to show that he or she was a “federal officer” at the time of the alleged conduct.

Before Beaver gets to the federal officer question, however, he reflects on the nature of the charges against his client, Still. Each of the charges against Still relate to his conduct as an elector, which involved nothing more than “assembling for 26 minutes” to sign a document. According to Beaver, the meeting of the electors on Dec. 14, 2020 was held at the State Capitol building and open to the media. There was a court reporter there to transcribe the proceeding, Beaver notes. He muses on this: If this was such a terrible crime, why have a reporter there to transcribe the whole thing?

What’s more, Beaver continues, the individuals who the state has portrayed as “monsters” were in fact “upstanding citizens of the community.” He rattles off a list of the alleged “gang members” who served as electors alongside his client: Brad Carver, an attorney and “war hero”; Burt Jones, who now serves as Georgia’s Lieutenant Governor; and Mark Hennessy, a prominent Atlanta-area car dealer. Not a group that you would think would be “up to no good,” he tells Judge Jones.

After stressing that the electors at the meeting were told that what they were doing was lawful by a “lawyer for the President,” Beaver turns to the question of whether they acted as federal officers. He points out that the Twelfth Amendment of the U.S. Constitution establishes the electoral college and commands electors to meet and transmit their electoral votes. As such, he continues, the electors perform a “federal function” when they vote. While states have control over the appointment of electors, the balloting process is purely governed by federal law, Beaver claims. To drive this point home, Beaver clicks to a new slide: BALLOTING = FEDERAL, it reads. The defendants, he surmises, acted as federal officials because they met and cast ballots as “contingent” electors.

 Now Latham’s attorney, William Cromwell, is up to address the second prong of the removal test, which requires the removing party to show that he or she is being prosecuted for conduct done “under color of office.” To support the claim that Still, Latham, and Shafer were acting within the scope of federal authority, he points to “the Hawaii precedent” during the 1960 election contest between Richard Nixon and John F. Kennedy.

After Nixon won Hawaii by a thin margin, he explains, Hawaii Democrats similarly met and signed “contingent” electoral certificates pledged to their candidate, Kennedy, in order to ensure that their votes would be counted by Congress should the outcome of the election in the state be reversed. Later, after Kennedy won the state following a recount, the officer who presided over the joint session of Congress acknowledged the competing electoral slates for the state of Hawaii. The slate pledged to Kennedy, not Nixon, was ultimately counted, he says.

Cromwell treads back to his seat following this brief argument. Holly Pierson, counsel for Shafer, jumps to her feet to address the third and final prong of the removal test, which requires that the defendants raise a “colorable federal defense.” To start, she reminds Judge Jones that the defenses need only be “plausible” to satisfy the standard for removal. What’s more, she says, the Supreme Court in Jefferson County v. Acker has indicated that courts should credit the removing party’s “theory of the case.”

As Pierson begins to dive into the substance of her argument, Judge Jones interrupts. “Why should I disregard the Supreme Court saying that electors are not federal officers?” he asks, alluding to the court’s 1952 decision in Ray v. Blair.

Pierson retorts that the court’s statement to that effect in Ray was “dicta”—basically, a statement said in passing that does not constitute binding precedent. She also notes that the Ray case did not involve a removal action under 28 U.S.C. § 1442.

Judge Jones appears unsatisfied with this response. “There’s dicta, and then there’s Supreme Court dicta,” he tells Pierson.

Moving on, Pierson moves to the “federal defenses” raised by the defendants. First, she says, Still, Shafer, and Latham are entitled to “Supremacy Clause immunity” because their conduct was authorized by federal law and they did no more than what was “necessary and proper” in carrying out their federal duties. What’s more, she tells Judge Jones, there’s a colorable “due process” defense, because statutes must provide “fair warning” that certain conduct could be unlawful. Here, she continues, “all prior authority pointed to the legality of the conduct, and it was historically uncontroversial.” Finally, she claims, the conduct at issue is protected First Amendment activity. 

After Pierson concludes her argument, special prosecutor Anna Cross is up to respond on behalf of the Fulton County district attorney’s office. This effort to remove, Cross begins, “is not grounded in fact or law.” She informs Judge Jones that it is not a “heavy lift” to determine that these defendants have not met their burden to to remove the case to federal court. There’s simply been no evidence, she continues, to show that these folks were acting any capacity other than in “their own self-interest” or in the interests of a political campaign.

 As Cross continues to expound on the purported failure of defense counsel to meet its burden of proof, Judge Jones interjects. Defense counsel, he observes, have argued that the defendants performed a “federal function” when they met and cast their ballots on Dec. 14, 2020. But does performing a “federal function” mean that they were federal officers for purposes of the statute? 

Cross, in reply, says no, performing a “federal function” does not transform a person into a “federal officer.” What’s more, she continues, the court has heard “no evidence” that this was a truly contested election. If the defense’s view of the law is correct, she contends, then that would mean that anyone could file a “faulty,” “meritless” suit the day before the Safe Harbor deadline and that would “throw the whole election up in the air” such that anyone could transmit electoral certificates to Congress under the guise that he or she is a “contingent” elector. In sum, she concludes, there is “nothing” to provide the court with a basis for allowing removal in this case.

Then Gillen is back up to reiterate the defense’s arguments. He contends that the electors were duty-bound to meet and cast electoral votes on Dec. 14, 2020, because there was pending litigation to contest the election, meaning that Georgia failed to meet the Safe Harbor deadline. The fact that there was pending litigation at the time of the deadline is a “checkmate” even if the litigation was ultimately unsuccessful, he says.

Cross jumps back up to provide closing remarks for the prosecution. Defense counsel’s arguments, she says, are “nonsense,” “unsupported,” “fantasy.” The core of their argument, she claims, is that a private lawsuit filed by private parties on behalf of a campaign can turn these defendants into “federal officials.” It’s nonsense, she repeats. The defendants in this case falsely claimed that they were “duly elected and qualified” electors from the state of Georgia, she explains. But under Georgia law, she points out, the only “duly elected and qualified” electors are electors for the candidate who won the popular vote. And the winner of the popular vote in Georgia was Joe Biden, not Donald Trump.

Briefly, Gillen is back up to stress that this case isn’t about Donald Trump. It’s about three citizens of Georgia who “did what they were told to do” in order to follow the law. Pierson, for her part, rises to argue that the defendants acted in “good faith.” No criminal act could have been committed here, she emphasizes, because their conduct was allowed by federal law.

Judge Jones is finally ready to call it a day. Thanking the parties for their time, he says he’ll enter a written order, though he “can’t give a timeframe” just yet.

And with that, we’re done for the day.