Fulton County prosecutors say Republican presidential electors charged in an alleged scheme to overturn the 2020 election are not entitled to move their case to federal court.
Three Republican electors have asked to have their cases heard in U.S. District Court in Atlanta instead of in Fulton County Superior Court. They say they’re eligible for a federal trial because they were acting as federal officials when they met in December 2020 to cast their ballots for Donald Trump – even as Georgia’s official electors met to cast their ballots for the winner, Democrat Joe Biden.
In a court filing late Tuesday, Fulton County District Attorney Fani Willis argued the Trump electors were not federal officials, as they have claimed. Instead, she said they sought to “impersonate” the genuine electors, and “their fiction is not entitled to recognition by this court.”
It will be up to U.S. District Court Judge Steve Jones to determine whether to transfer the cases to federal court. He has scheduled two hearings on the matter later this month.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
In a related matter, one of the electors - former GOP Chairman David Shafer - filed two additional motions Tuesday.
In one motion, Shafer seeks to stay proceedings against him in Fulton County Superior Court until 30 days after Jones decides whether to move his case to federal court. In the other, he asks that his case be severed from the other defendants who have demanded a speedy trial in the sweeping indictment to ensure Shafer has sufficient time to prepare his defenses and to prepare for trial. The effect of either motion could be to slow down proceedings against Shafer.
The motions are just the latest legal twists since a Fulton County grand jury indicted 19 people – including Trump – last month for trying to overturn the 2020 election.
Among those indicted were three of Georgia’s 16 Trump electors – Shafer; state Sen. Shawn Still, R-Norcross; and Cathy Latham, former chairwoman of the Coffee County Republican Party. Willis has charged them with racketeering, impersonating a public officer, forgery and other crimes.
The electors and some other defendants have sought to have their cases removed to federal court, where they might find a more sympathetic jury from the larger swath of Republican north Georgia.
To have a case removed to federal court, defendants must show they were federal officers performing federal duties. They also must raise a plausible federal defense.
The three Trump electors have argued they were acting as “contingent” electors under federal law and they were under the direction of Trump and other federal officials. Among other things, the electors say they are immune from state prosecution because they were acting in a federal capacity.
In Tuesday’s filing, Willis said the Biden electors were Georgia’s official representatives to the Electoral College, and the Trump electors had no official sanction. She said even the official electors were not federal officials under the U.S. Constitution. The electors, Willis wrote, are officers of the state, not the federal government.
She said the Republican electors took direction only from the Trump campaign and Trump’s personal attorneys – not from the president in his official capacity. Trump was acting as a candidate, not as president, Willis argued.
“Despite the now obvious and repeatedly confirmed fact that then-President Trump had lost the presidential election in Georgia, and the fact that the Republican-nominated slate of electors were never appointed by the State of Georgia to vote in the Electoral College proceeding, defendant and the other representatives of the losing campaign chose to pretend otherwise,” Willis wrote.
Willis - along with Special Prosecutor Anna Green Cross and Chief Senior Assistant District Attorney F. McDonald Wakeford - filed the response to Still’s petition to have his case removed to federal court. She is expected to formally respond to Shafer and Latham this week.
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