Criminal Statutes Applicable To The Forged Electoral College Certificates

Example of the forged certificates

Republicans in five different states, (Arizona, Georgia, Michigan, Nevada and Wisconsin) forged electoral college certifications and submitted them to the National Archives and Congress. These counterfeits falsely claimed themselves “the duly elected and qualified electors” for those states. Many of them made other false representations. For example the Michigan fraudsters claimed they met in the State Capitol. The Michigan Attorney General says that is false, they tried to gain entry to the Capitol but were barred. Both the Michigan Attorney General, and the Attorney General for New Mexico, have referred the matter to the Department of Justice for potential criminal prosecution.

Which leads to the question, what specific charges could be filed? This article will suggest a few.

False Statements: 18 U.S.C. § 1001.

This is the statute that Michael Flynn, Roger Stone, Michael Cohen and others were prosecuted under when they lied to Congress or the FBI. In relevant part the statute reads as follows:

“whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully —

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years.”

While all three of those can work, the third seems most on point. The fraudsters here submitted a document to the executive branch (National Archives) and legislative branch (Congress) that constituted a “false writing.” As you can see, this is a serious felony with an up to five years in prison penalty.

Conspiracy To Commit An Offense Against Or Defraud The United States: 18 U.S.C. § 371.

I discussed this statute extensively in a prior article entitled The Lay Down Case For Charging Trump (And Others) With Conspiring To Defraud The United States. This statute reads:

“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years.”

As described in the prior article the case law makes clear that the statute broadly applies to any conspiracies aimed at “impairing, obstructing or defeating the lawful function of any department of government.” Further mere overreaching is sufficient to satisfy the offense. “It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged.”

In Haas v. Henkel, 216 U.S. 462 (1910), Haas was criminally culpable under this statute merely for submitting false reports on cotton production that interfered with the ability of the government to accurately report the same. Surely if something as trivial as false reports on cotton production run afoul of this statute fraudulent and counterfeit electoral college certificates go much further. In United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990), disguising contributions to evade the Federal Election Commission’s reporting requirements constituted fraud on the agency under Section 371. Again, what occurred here went much further.

The strength of using this statute is that it can capture individuals who did not directly prepare, sign or submit the counterfeit electoral college certificates but who participated in the conspiracy to do so. Names that have been tied to this so far include Sydney Powell, Rudy Giuliani, John Eastman and Jeff Clark.

It should be noted that § 371 has already been used to charge dozens of those who first conspired to and then attacked the Capitol on January 6th (one of many examples HERE). In their case the DOJ alleges that the purpose of the conspiracy was to “stop, delay and hinder the Certification of the Electoral College vote.”

Election Fraud: 52 U.S.C. § 20511.

In relevant part this statute states that whoever:

“defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by . . . the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held, shall be . . . imprisoned not more than 5 years.”

A court would have to determine whether “ballots” in this statute can include electoral college ballots (as opposed to voter ballots) but that certainly is not an unreasonable stretch.

Mail Fraud: 18 U.S.C. § 1341.

“Fraud” for purposes of the mail fraud statute generally requires a scheme or plan to defraud someone of money, property, or “honest services.” I suppose there might be someway to try to shoehorn that in, but I thought it would be tough and did not include it for that reason. It should be remembered that ambiguities in criminal statutes are interpreted in favor of the defendant because due process requires that the statute provide clear notice of the prohibited conduct.

However, if it is determined the mail fraud statute applies that would be BIG because it would mean potential prosecution under the RICO Act of those who coordinated this scam across the multiple states.

Conclusions

It turns out there was wide ranging election fraud that was aimed at overturning the results of the election. It was committed by dozens of Republican lawmakers and officials who forged counterfeit electoral college certifications and submitted them to the National Archives and Congress. This fraud was illegal and should be prosecuted.

There should be a statute that more directly criminalizes creating counterfeit electoral college certificates, but I can find none. That does seem like a statutory recommendation that should come from the 1/6 Committee.

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Keith

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80