David Shafer, the chairman of the Georgia Republican Party, was following legal advice and broke no laws when he cast a “contingent” Electoral College vote for Donald Trump following the 2020 presidential election, Shafer’s lawyers say.
In a letter to Fulton County District Attorney Fani Willis, attorneys Holly Pierson and Craig Gillen also said Shafer was relying on an almost identical scenario which played out in Hawaii more than six decades ago and was led by Democrats.
The lawyers made the claims in a March 26 letter to Willis seeking to ward off an indictment against Shafer, who will leave the post as GOP party chair in June. Last summer, Willis labeled Shafer and the other 15 GOP electors as targets of her ongoing investigation into possible criminal meddling in Georgia’s 2020 election.
“(E)very action by Mr. Shafer as a presidential elector nominee or contingent elector in 2020 was specifically undertaken in conformity with and reliance upon the repeated and detailed advice of legal counsel, eliminating any possibility of criminal intent or liability,” Pierson and Gillen stated in the 11-page letter.
In a statement to The Atlanta Journal-Constitution, Gillen said he was sharing a copy of the letter now because he and Pierson were concerned that the public was unaware of the reasons why the GOP electors took the actions they did, which he said were “based on strong legal precedent and legal advice.”
“I believe that any fair minded person, with possession of all the facts, would conclude that Mr. Shafer and the other Republican presidential elector nominees acted lawfully and appropriately,” Gillen said.
Willis’s office declined to comment. She has said she will disclose her charging decisions between July 11 and Sept. 1.
In a separate legal filing late Friday, a lawyer representing some of the other GOP electors said at least eight of them had accepted immunity deals.
‘Preserve his rights’
Shafer’s involvement in the electoral dispute began on Dec. 4, 2020, when he joined Trump as a plaintiff in a lawsuit contesting the Georgia election. Although their request for an emergency injunction was withdrawn five days later, the lawsuit in Fulton County Superior Court was still pending at time of the Electoral College vote on Dec. 14, 2020.
On that day, Shafer and the other GOP electors assembled in a committee room in the Georgia statehouse at noon, to cast votes for Trump. The meeting occurred at the same time Georgia’s official Democratic electors voted for Joe Biden upstairs.
Shortly before the meeting began, the doors to the committee room were closed and an inquiring reporter from the AJC and independent journalist George Chidi were turned away, being told an “education meeting” was occurring. The AJC reporter tweeted about it, and eventually, after more members of the press showed up, journalists were allowed to come inside and take video of the proceedings, over which Shafer presided.
The activists signed a document stating they were the “duly elected and qualified electors” from Georgia. Later sent to the National Archives in Washington, the document was similar to those submitted by Republicans in a half-dozen other swing states.
Afterward, Shafer said the group had been “asked by the president’s lawyers to hold this meeting to preserve his rights” while Trump’s challenge was litigated in court. “Had we not held the meeting, his lawsuit would effectively be mooted,” Shafer said.
Pierson and Gillen attached to their letter a Dec. 10, 2020, email to Shafer from Atlanta attorney Alex Kaufman.
“I believe that this is still the most conservative course of action to preserve the best chance for Georgia to ultimately support the president’s re-election,” wrote Kaufman.
Hawaii precedent
Pierson and Gillen said the lawyers advising the alternate electors were relying upon “the precise scenario” that played out in Hawaii after the 1960 presidential election in which John F. Kennedy defeated Richard Nixon.
When votes were initially tallied, Nixon won the state by 0.06% of the vote, and three Republican presidential electors were certified. But Democrats filed a lawsuit contesting the results and three non-certified Democratic electors cast their Electoral College votes for Kennedy on Dec. 19, 1960, just as the GOP electors did for Nixon that same day.
A recount showed that Kennedy won the state by a mere 115 votes, and Judge Ronald Jamieson, who was overseeing the lawsuit, ruled in the Democrats’ favor and their votes were counted.
“Rather than suggest the uncertified Democratic electors had committed crimes, Judge Jamieson hailed them as heroes, describing their meeting as a critically important step that preserved their ability for their presidential ballots to be counted,” Pierson and Gillen stated in their letter.
Legal exposure unclear
The alternate electors in Georgia have been of interest to not only Willis but also to the Jan. 6 committee on Capitol Hill and federal prosecutors. The Justice Department sought records from Shafer last summer, and Shafer was interviewed by the Jan. 6 committee last year.
Legal experts are divided on the legal exposure of the GOP electors. Some argue they could be charged with violating state laws against false statements, forgery, racketeering and election fraud. Others contend the intent of the electors will be a key factor in determining any criminality — and could be difficult to prove.
Shafer told the Jan. 6 committee he learned of the alternate elector plan only a few days before the group met. He said he had no knowledge before the electors’ vote of plans to use it as a tool to try and persuade Vice President Mike Pence to overturn Biden’s victory.
Pierson and Gillen also said ethics complaints were filed against two lawyers, Brad Carver and Daryl Moody, who cast votes as alternate Trump electors, but the State Bar of Georgia later cleared them of misconduct.
One complaint against Carver was rejected by an 18-0 vote by the State Bar’s disciplinary board, the letter said. “Mr. Carver relied upon representations ... that it was necessary for the Republican nominees for presidential elector to meet and cast votes so that their then-pending challenge would not be rendered moot,” the State Bar’s decision said.
The letter also said members of Fulton’s special purpose grand jury that investigated the case may have been “improperly influenced by erroneous and inflammatory media coverage” in light of the fact forewoman Emily Kohrs has said in interviews that a fellow juror often brought in a newspaper.
“The coverage of the AJC (and most other media outlets) has been consistently and materially wrong,” the letter said. Media coverage has said the GOP votes were “behind closed doors” when in fact they were open and attended by members of the news media, they said.
There was no advance notice of the meeting. The day before, several of the Republican electors told an AJC reporter there were no plans to meet on Dec. 14.
A Dec. 13 email from Robert Sinners, then a Georgia-based Trump campaign official, directed the electors to keep their plans secret, including to any Capitol security guards or members of the media who might inquire.
“Your duties are imperative to ensure the end result — a win in Georgia for President Trump — but will be hampered unless we have complete secrecy and discretion,” Sinners wrote, according to the email, which was uncovered more than a year later by federal investigators.
In their letter, Pierson and Gillen also said news outlets have also “inaccurately but repeatedly disparaged the Republicans as ‘fake’ or ‘phony’ electors and falsely suggested they were somehow self-elected and acting ‘without legal basis,’” the letter said.
