LAS VEGAS (KTNV) — Attorneys for six Republicans accused of signing fake Electoral College certificates after the 2020 election in an attempt to keep President Donald Trump in power argued Monday they were just exercising their rights to free speech.
But prosecutors from Nevada's attorney general's office said the six engaged in a fraud designed to mislead officials about the fact that Trump had lost the state decisively to Joe Biden.
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"The state's case fails because there's no evidence that defendants were doing anything other than exercising their First Amendment rights to preserve their future First Amendment rights to petition the government and challenge the results of Nevada's election," said Maggie McLetchie, an attorney for Jesse Law, one of the accused electors.
The controversy began after Trump lost the 2020 election to Biden, including swing states such as Nevada, Pennsylvania, Georgia, Michigan and Wisconsin.
The Trump campaign asked electors in some of those states, including Nevada, to sign certificates attesting to the fact that Trump had won, despite the verified results. Those certificates were intended to be sent to Washington, D.C., where Trump was pressuring his then-Vice President Mike Pence to reject the legitimate Electoral College votes and accept the Republican certificates instead.
The plan fell apart after Pence refused the president's request, and rioters stormed the Capitol building to disrupt the vote-counting on Jan. 6.
Notably, electors in Pennsylvania asked Trump officials to alter the wording of their certificates, to ensure they would be counted only in the event that a pending court challenge overturned that state's votes and awarded the electors to Trump. (That lawsuit was ultimately unsuccessful.)
But in Nevada, the electors were not told of the concerns raised in Pennsylvania, even after one of the key players in the scheme raised it with Trump campaign officials, according to testimony.
Richard Wright, quoting from court papers, said the campaign's crudely worded response when asked about including the conditional language in Nevada's certificates was, "F*** those guys."
But, lawyers for the Republicans said, there were still telltale signs that the certificates were inauthentic: They did not have the state seal, they were not signed by the secretary of state (like the real ones were) and they did not properly refer to other documents that tallied Nevada's votes.
Not only that, but the certificates were not used by the joint session of Congress in counting ballots, they were not filed with the legitimate Electoral College certificates in the National Archives and they were even rejected by the Nevada secretary of state's office, which returned them to Nevada Republican Party Chairman Michael McDonald.
But state prosecutors said those flaws didn't matter, since the intent of the electors was to deceive people about the true results of the election in the Silver State.
"This isn't a First Amendment argument," said Alissa Engler, the chief deputy attorney general who is one of the prosecutors on the case. "They didn't just make a grand stand, state their position and throw those certificates in the trash. They took them to the post office, they mailed them to all the four places that's required by law because they wanted those documents to be considered."
Although Attorney General Aaron Ford admitted to the 2023 Legislature that no state statute specifically makes signing fake Electoral College papers a crime, he nonetheless sought a grand jury indictment in 2023 under two other state laws, one that bans filing a false instrument and another that prohibits passing off a fake document as a real one.
Clark County District Court Judge Mary Kay Holthus initially dismissed the matter on jurisdictional grounds, saying the case should have been brought in Carson City, where the papers were signed. But the Nevada Supreme Court overruled her, saying that since one set of documents was erroneously sent to Las Vegas, the case could proceed here.
Engler said the certificates were concerning enough to the Nevada secretary of state that the office warned the secretary of the U.S. Senate and the National Archives to use only the legitimate Democratic votes when tallying national election returns.
She also said that by Dec. 14, the Nevada Supreme Court had issued a final ruling, rejecting the challenge to Nevada's votes, so there was no pending legal case on the day the fake papers were signed, which makes it unlikely that the electors were trying to preserve future rights. (Attorneys for the electors, however, said a potential U.S Supreme Court appeal was being considered. No such appeal was ever filed.)
Holthus on Monday said she found it hard to believe that anyone would accept or act upon the fake certificates, which could erode part of the state's case.
"It would be so impossible, that I don't see how there can be an intent to defraud, because none of that would kick in unless something else happened," Holthus said. "If they file something that says 'Donald Trump is the president ' and he's not the president, they can file it all day long, it doesn't make any difference."
The judge asked attorneys to draft additional arguments, due by March 2. The next hearing in the case will be April 10.
