Fulton county prosecutors argued at a court hearing on Wednesday that three fake Trump electors seeking to transfer their criminal cases for conspiring to overturn the 2020 election in Georgia should have their requests denied as they were not federal officials and thus ineligible.
The prosecutors cited past comments made by supreme court justices to contend that merely performing a role in a federal election did not make them federal officials and, in any case, they were not even the duly elected electors for the state because Donald Trump lost.
“These private parties did not transform into public officials by committing a crime,” lead prosecutor Anna Cross said at the evidentiary hearing in federal district court in Atlanta. “They were not federal officials. They were not electors at all.”
The decision on whether the three Trump electors – David Shafer, Shawn Still and Catherine Latham – can remove their racketeering charges to federal court will be made by the presiding US district judge, Steve Jones, who declined to issue a ruling from the bench.
Jones now has four removal decisions in the Fulton county prosecution pending: the request filed by Jeffrey Clark, the former Trump justice department official, as well as the motions filed by the three fake electors that were collapsed for logistical reasons into one hearing.
The judge previously rejected the removal request from Mark Meadows, the former Trump White House chief of staff. Last week, Meadows appealed the decision to the US court of appeals for the 11th circuit.
How the current cases play out are important for the other co-defendants in the sprawling racketeering and conspiracy indictment, most notably Trump, who has been weighing whether to file a request of his own and whose lawyer Steve Sadow was at Wednesday’s hearing.
To move a state criminal case to federal court, a defendant has to show they were a federal official, that they were acting within the scope of their official duties as a federal official and they had a legitimate defense to the conduct under federal law.
At the evidentiary hearing, the defense lawyers for the three Trump electors made two primary arguments that their clients could be construed as federal officials and therefore eligible to be tried in federal court.
The Trump electors satisfied the first two prongs of the removal test, their lawyers argued, because the signing and sending of the fake certificates declaring Trump the winner of the 2020 election in Georgia were acts described by the Electoral Count Act.
If the Trump electors were federal officials, as their lawyers believed, they could satisfy the third prong by arguing they were immune because they would be protected by the supremacy clause that bars individual states from prosecuting US government officials.
That argument from the Trump electors was complicated: it contended that so long as a lawsuit challenging the 2020 election results in Georgia had not been resolved by the so-called safe harbor date, it was up to Congress to decide which slate to accept at the congressional certification.
“When the state misses the safe harbor date, the power goes back Congress,” said Holly Pierson, one of the lawyers for Shafer.
Whether Jones accepts that reasoning is uncertain. Legal experts noted that the argument suggested Congress had an ability to unilaterally decide which slates to accept in the event someone filed a lawsuit and it was not adjudicated before the safe harbor deadline.
The prosecutors also argued that the Trump electors were nothing other than private individuals trying to overturn the 2020 election result since, under Georgia state law, official electors are those nominated by the party that wins the popular vote – which was never in doubt.
Furthermore, to successfully change trial venue from state to federal court, the burden rests on the defendants to show they were federal officials. The three Trump electors did not meet their burden because they did not appear in person for examination, the prosecutors argued.
