The latest federal charges against former President Donald Trump accused him of working to subvert the 2020 election by pushing officials in seven states to create a fraudulent slate of electors to force then-Vice President Pence to block Congress from certifying Joseph R. Biden’s victory.
The charge against Mr. Trump is outlined in special counsel Jack Smith’s 45-page indictment of the former president, who he charged with four felony counts for trying to overturn the 2020 election results, including the Jan. 6, 2021, riot at the U.S. Capitol.
“On the pretext of baseless fraudulent claims [Mr. Trump] pushed officials in certain states to ignore the popular vote, disenfranchise millions of voters, dismiss legitimate electors and ultimately cause … voting by illegitimate electors in favor of the Defendant,” Mr. Smith contends in the indictment.
Mr. Trump’s lawyers have vigorously denied the charge, and some of Mr. Smith’s case ignores legal ambiguities around whether Mr. Pence had the authority to block Mr. Biden’s victory.
The charges also ignore past efforts by House and Senate Democrats to contest electoral college results and it ignores the1960 election, when Hawaii Democrats asserted John F. Kennedy won the state and sent their own certificate to Congress, even though Richard M. Nixon was ahead by 140 votes. In a recount a few weeks later, Mr. Kennedy was determined to be the winner but state Democrats were not prosecuted for providing alternative electors before those results were calculated.
Tom Fitton, president of the conservative watchdog group Judicial Watch, was called to testify before the grand jury that indicted Mr. Trump over his post-election actions.
Mr. Fitton, who consulted with Mr. Trump following the election, said he testified to the grand jury about his concerns in 2020 when it was reported that a group of top government officials, including Democrat John Podesta, participated in a project called the Transition Integrity Project. The participants played out 2020 election scenarios that would keep Mr. Trump out of office.
Mr. Podesta, who managed Hillary Clinton’s 2016 presidential campaign and is currently a senior adviser in the Biden administration, played the role of Mr. Biden in the enactment.
He acted out a scenario in which Mr. Biden could not concede the election due to alleged voter suppression and instead persuaded the governors of two swing states to send alternative electors to the Electoral College.
Mr. Podesta’s scenario also envisioned three states seceding from the U.S. in protest if Mr. Trump were to win the 2020 contest.
“I told the grand jury that this is something that I was very much concerned about,” Mr. Fitton said. “Because it looked to me like they were threatening civil war if the election didn’t go the way they wanted it.”
Mr. Trump’s lawyer said Mr. Smith’s charges do not take into account that the former president firmly believed election irregularities skewed the results in favor of President Biden and that the election was essentially stolen.
Mr. Trump continues to insist that he won in 2020.
Trump’s lawyer, John Lauro, told ABC News that the Justice Department “will never be able to prove beyond a reasonable doubt that President Trump had corrupt or criminal intent.”
Mr. Smith’s indictment, however, provides memos and testimony that the prosecution says show the Trump team turned their post-election legal strategy into a “corrupt plan” involving false electors.
Mr. Smith argues in the indictment that the team knowingly deceived state officials into thinking they could act as alternate electors but their votes would only be used if the dozens of lawsuits filed by the then-president and his allies challenging the results succeeded in court.
Those state officials, Mr. Smith said, “were tricked into participating” in the false elector scheme.
Mr. Smith obtained a six-page memo authored by Trump attorney Kenneth Chesebro on Dec. 6, 2020, in which he detailed a plan for alternative electors from a half-dozen states where Biden won to assemble and vote for Mr. Trump.
Under the plan, Mr. Pence could use those alternate electors to deny certification of Mr. Biden’s victory when Congress assembled on Jan. 6. As vice president, Mr. Pence would preside over Congress’ certification of the results.
Mr. Chesebro acknowledged that the electors scheme would likely face rejection from the Supreme Court, according to the memo, which was leaked to the New York Times. But the plan, he said, “would also buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump’s column.”
Mr. Chesebro also acknowledged the alternative electors plan as “a bold, controversial strategy.”
Mr. Pence ultimately rejected pressure from Mr. Trump to reject the Electoral College results. Mr. Pence now has become a star witness in Mr. Smith’s case against his former running mate and has turned over pages of notes memorializing conversations he had with Mr. Trump in the weeks following the election.
Mr. Pence said he was not authorized to reject the electoral college results and repeatedly made the argument to Mr. Trump. But constitutional legal experts and lawmakers in Congress determined the law was not clear in 2020.
Congress passed the Electoral Count Reform Act in December 2022.
The legislation updated the original 1887 law, which was “rife with imprecise language, gaps and ambiguities,” according to the Campaign Legal Center.
The new law codifies that the role of the vice president is “solely ministerial” when Congress is certifying the electoral college.
It mandates that Congress must “defer to the slates” of electors that are determined by the states. The law also calls for security features to ensure official electors, and not alternatives, are transmitted to Congress and that electors can’t be changed following the election.
Mr. Smith’s indictment takes the words of Mr. Trump’s senior adviser to make his case that the former president had to have known his actions were illegal.
One senior adviser, according to the indictment, texted, “Certifying illegal votes,” and Mr. Trump’s deputy campaign manager said the alternative electors plan had “morphed into a crazy play.”
