Courts & Litigation Democracy & Elections

Lawfare Daily: Mary McCord on the Effort to Hold Fake Electors Accountable

Anna Hickey, Mary B. McCord, Jen Patja
Friday, June 7, 2024, 8:00 AM
How have those involved in the fake electors scheme been held criminally or civilly accountable? 

Published by The Lawfare Institute
in Cooperation With
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In 2022, Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection and Stafford Rosenbaum filed a lawsuit against ten Wisconsin fraudulent electors, Kenneth Chesebro, and James Troupis for their efforts to subvert the 2020 election. Earlier this year, ICAP reached two settlements with the defendants, which resulted in thousands of pages of text messages, emails, and other correspondence being turned over, providing new insight into how exactly the fake electors scheme was developed and implemented in Wisconsin and across the country. 

Lawfare Associate Editor for Communications Anna Hickey sat down with ICAP Executive Director Mary McCord to discuss the settlements reached with the Wisconsin fraudulent electors, what new information was revealed in the thousands of pages of documents turned over, and whether the recent criminal charges filed against Kenneth Chesebro, James Troupis, and Mike Roman revealed any new information.

Watch a video version of their conversation here.

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Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.

 

Transcript

[Introduction]

Mary McCord: The fraudulent elector scheme was an absolutely critical prong of this multi-prong conspiracy to overturn the results of the election. And it was the narrative that formed the basis for the attackers to feel like they were justified in that attack.

Anna Hickey: It's the Lawfare Podcast. I'm Anna Hickey, associate editor for communications at Lawfare, with Mary McCord, Executive Director of the Institute for Constitutional Advocacy and Protection and a visiting professor of law at Georgetown Law.

Mary McCord: Some of the final text messages and things we have from January 6th show Ken Chesebro sending photos of himself at the Capitol with people like conspiracy theorist Alex Jones. During the riot, we have Troupis responding with, well done, Ken, history is made, and a clapping hands emoji. And then Ken Chesebro saying, tear gas in the Capitol, I just caught a whiff. LOL.

Anna Hickey: Today, we're talking about ICAP's lawsuit against fake electors in Wisconsin, and the recent criminal charges filed against individuals involved with a faked elector scheme by Wisconsin Attorney General Josh Kaul.

[Main Podcast]

So today you're joining us to talk about a lawsuit that your organization, the Institute for Constitutional Advocacy and Protection, has been involved with in Wisconsin, with the fake electors. Can you talk about who you were representing and who you were suing?

Mary McCord: Sure. So we, along with our co-counsel at Law Forward and Stafford Rosenbaum, these are co-counsel located in Wisconsin. We, along with our co-counsel represented two of the democratic, legitimately appointed presidential electors from 2020, as well as a voter in Wisconsin. And we brought the suit against the 10, you know, unappointed, unlawful, we've called them fraudulent or fake electors. Those who had been nominated to be electors for Donald Trump and Mike Pence. But of course, when Trump and Pence did not win the vote in Wisconsin and were not certified by the governor as the victors, that meant those nominated electors did not actually ever become presidential electors.

And so we sued those 10 fraudulent electors, along with Trump campaign attorney, James Troupis, who was a campaign attorney in Wisconsin and Trump attorney, Ken Chesebro, who was not, he actually is from Wisconsin, but he was operating and the two of them were very, very instrumental in concocting the entire fraudulent elector scheme, which spread beyond Wisconsin, sort of ground zero to all of the seven swing states.

Anna Hickey: And then what was the goal of bringing this lawsuit? Were you seeking monetary recompense for the damages, or was there something else that the civil suit was seeking to obtain?

Mary McCord: So, you know, we brought this litigation before there were any publicly announced criminal investigations into the fraudulent electors or any of those involved with that scheme and actually before, you know, the House Select Committee to Investigate January 6 had finished its work. And we brought it because over a year had passed since the election in 2020 and the January 6 certification and attack on the Capitol. And we weren't seeing that there was going to be any accountability for the fraudulent electors or anyone else involved in the scheme. And that's when we really started investigating this and looking into what kind of causes of action we might be able to bring in Wisconsin under Wisconsin law. And the real goal here was for there to be accountability to ensure that this could not be repeated in a future election by getting, you know, a judgment from the court that this was unlawful and not authorized.

And one of our claims did seek money damages. And in fact, as, as a result of one part of the settlement, there was a, you know, I, I'm not at liberty that we kept confidentially amount, but there was a settlement involving financial compensation. And that was really directed to the harms that our legitimate electors suffered because of, you know, intense social media and other scrutiny of them and the difficulties, you know, that, that, that, that they had to face of course in reputational harm while there was so much disinformation about election fraud in 2020. And you know, the legitimate electors bore the brunt of some of that disinformation.

Anna Hickey: You know, you, of course, mentioned the attack on the Capitol on January 6th. What was the, like, importance of these state level fake electors to former President Trump's efforts to subvert the 2020 election? And if they had not, if there had not been fake electors, would the attack on the Capitol on January 6th have occurred? Like, what was the level of importance?

Mary McCord: So, you know, I mean, I don't know if I can answer the, the but for question, except that I think that the, the fraudulent elector scheme was an absolutely critical prong of this multi-prong conspiracy to overturn the results of the election. And it was the narrative that formed the basis for the attackers to feel like they were justified in that attack. So, you know, I think that it really is a but for cause, but you know, one, I mean, that's kind of a, the type of question you'll never have a complete answer to. But the reason I say that is this, you know, this scheme was to legitimize this notion that these were the true electors from the swing states, that Donald Trump had actually won those states rather than Joe Biden, and that these electors votes should be counted by Mike Pence on January 6th instead of the legitimate votes of the Biden/Harris electors. That of course would have meant that the election would have been won if those votes, if these fraudulent electoral votes were counted, that would have meant Donald Trump would, would win the election.

We know so much more about this now. We know that when the plot was hatched to have the fraudulent electors vote on the day the Electoral College was scheduled to vote that year, which was December 14th, originally that was sort of pitched as they had to do that in case any of the pending litigation challenging the results in those states would result in Trump being declared the winner. And therefore they had to meet because otherwise there would be no way for them to get their, their electoral ballots up to, to Vice President Pence. That was sort of like the cover story.

But we now know that even from the very beginning, from just five days after the election, the first notions of, well, you know, if there's an alternate slate of electors, either because they vote on December 14th or because a state legislature sends up its own slate, this would throw January 6th into chaos and could result in ultimately the election be decided under the terms of the 12th Amendment, which is the mechanism when no candidate receives the requisite number of votes, 270, to actually become declared the president. Then under the 12th Amendment, the House decides with one vote per state. So therefore if the state delegate, if there are more states whose majority delegation is Republican than that, which there were 26 states, that would mean that Trump wins.

So the, the plot we now know from the very beginning was really just to find a way to muck up the works, right? It wasn't really to try to preserve the opportunity in case there was successful litigation for these votes to be counted. And I know I've digressed a little bit from your question, but my point comes back to that whole narrative, right? That, that now Vice President Pence should count these votes instead of legitimate votes because there were fraud, there was fraud back in those seven states. That was the narrative that drove the rioters. And when, you know, the House Select Committee interviewed them, those are the types of things they would say: Mike Pence didn't have the courage to do it. He knew what needed to be done. And what that was referring to was count those fraudulent votes or refuse to count votes from those states at all because there's dueling slates of electors and therefore throw the election to the House under the 12th Amendment.

Anna Hickey: You mentioned there were, you know, a couple other states other than Wisconsin where this fake elector scheme was occurring, states like Georgia or Michigan or Arizona. Why did you all decide to start in Wisconsin with a civil litigation?

Mary McCord: Well, you know, partly because that really was where ground, ground zero for the scheme. I mean that much we knew even at the time that that's sort of where it started. We knew at that time that Ken Chesebro had actually gone to Wisconsin to the Capitol in Madison on, on December 14th and was there when the electors met and voted, the fraudulent electors met and voted. And, you know, we had co-counsel there who we had reached out to and talked to who are interested in, in bringing this.

And we did think potentially then other state, you know, in other states, similar litigation could be brought. Or frankly, what ended up happening we thought maybe would happen with, which is that some of the state attorneys general and prosecutors would really start looking into criminal culpability for this scheme. And we've now seen that with multiple charges being brought in different states, Michigan, Arizona, Georgia, and now, now as of this week in Wisconsin as well, although not against the fraudulent electors against Mr. Troupis, Mr. Chesebro and a Trump campaign operative, Mike Roman.

Anna Hickey: And before we dive into the criminal charges that were recently announced, of the civil litigation, what has been the result of this suit? Has there been settlements that have come out? How many settlements?

Mary McCord: Yes. So we were in the throes of, you know, we had already litigated motions to dismiss and we had survived those motions to dismiss. And we were in the midst of really intense discovery at the end of last year, in the beginning of this year. And in the course of all this working up toward motions for summary judgment, we were able to resolve the case again with all of the defendants. And we did that in sort of three phases.

We, first in December, we're able to resolve the case against the 10 fraudulent electors. And that settlement resulted not only in the fraud, in those electors making a public statement that they were not the legitimate electors, that Joe Biden and Kamala Harris had in fact won the state of Wisconsin, that they had met and voted at the request of the Trump campaign, and that they recognized that their ballots were used as part of a bigger effort to undermine the 2020 election. They also formally said they were withdrawing, you know, those ballots that they had sent up because that had never happened in any state. They're still, you know, for the purposes of sort of historical record, these had still been submitted and never actually withdrawn. They also provided a number of documents, including text messages, emails, et cetera, that were very revealing about what the fraudulent, what the electors have been told and what was sort of their state of the mind going into December 14th to that meeting.

And I will say that even though originally I do think a number of them, not necessarily all of them, but a number of them really did think that they were going at the request of the Trump campaign in order to cast those ballots as sort of a contingency should any of the lawsuits challenging the election in Wisconsin be successful. By the time that they met based on the emails and text messages we've seen, they knew that that was over. In fact, the Wisconsin, the Supreme Court, the morning of December 14th had dismissed the last litigation, ruled against. And so, some were asking, why do we even have to do this? You know, isn't this what's the point of this? And the direction was, well, the Trump campaign is asking them to do it. And so they did. So that at that point, it was just our resolution with those electors, the 10 electors, the fraudulent electors.

And then we continue to litigate against Mr. Troupis and Mr. Chesebro. But right, I guess at the very end of February, beginning of March, we were able to enter settlement agreements with both of them. And those agreements also resulted in us being able to make public thousands of pages of emails and text messages and memos that really offer transparency into how the scheme was devised. We did as part of the settlement with Mr. Troupis, as I indicated before, achieves a financial, there was a financial component of that which we did keep that amount confidential as part of the settlement, but there was a financial component.

And so in, in the course of getting those documents, we had actually been litigating over a lot of these documents because Mr. Troupis had been asserting attorney client privilege and work product privilege for many, many of these documents. Mr. Chesebro, frankly, had been just kind of not participating and just refusing to provide anything, but ultimately did agree to the settlement and provide documents. And we were in the midst of litigating whether the documents for which Mr. Troupis was claiming attorney client privilege and work, other privileges were actually, you know, should be revealed under the crime fraud exception. So we were in the midst of that briefing. We had filed briefs on it. I think those briefs if, which are also available to the public, really show the extent to which Mr. Troupis sought to keep these documents and materials hidden through, we think very, very unsupported assertions of attorney client and work product.

But at any rate, ultimately the result was we got thousands of emails and text messages. These are all available on the ICAP website, but they also have been integrated, and Law Forward has some of them, has them available on their website. But they've also been integrated into a comprehensive timeline of the fraudulent electors scheme that is published on the Just Security website. And people can, you know, go, they can researchers, journalists, just members of the public who want to know how this happened can go to any of these sources and they can literally click through and read them for themselves.

Anna Hickey: And so what new information was revealed in these documents? Was there a lot of correspondence between people like Ken Chesebro and people in former President Trump's national presidential campaign, like John Eastman, who was pushing for the fake elector scheme? Or was it primarily state to state? What kind of information did you learn?

Mary McCord: All of the above. And, and one of the things that I think is most significant about this case is that, you know, John Eastman certainly was a major player in the pressure campaign on Mike Pence and state legislatures, but he was not the architect of the fraudulent elector scheme. This was something that was proposed by Kenneth Chesebro. Again, I referenced that a, an email that he's, that he sent to Troupis just five days after the election had already suggested that this was a theory that they could use to throw, to cause chaos on January 6th. And ultimately, you know, use that to invoke the 12th Amendment, which would throw the election to Trump.

Now, I will say the way this started is Jim Troupis was in charge of the, the challenges to the election results in Wisconsin as a Trump campaign attorney. He knew Ken Chesebro. He reached out to Ken Chesebro originally to help with that litigation. But once he reached out, it was Ken Chesebro who sort of started to talk about this scheme and the need for the electors to meet and vote on December 14th. Chesebro had no connections to Trump himself, to the national committee, you know, to the Trump campaign, to anyone in the White House. Troupis did, however, he had those connections. So he very early on in November asked Ken Chesebro to write a memo about this. That memo was written in November, and it was Troupis who then sent that up to the Trump campaign officials and the people at the White House.

He's the one who really introduced Ken Chesebro and this idea to those who had the ability to, to say, yes, let's make that happen. And then as a result of that, he had Ken Chesebro do additional memos. It's almost like he took on this sort of like senior partner role to Ken Chesebro's junior associate role. Right? Ken was writing memos for him. He was sending these memos up to the campaign officials. And eventually, I say eventually, this is all happening in a matter of, you know, a few weeks, they ask, hey, could this be replicated in the other states? Troupis reaches out to Ken, says, Ken, can you help with the other States? Ken's like, absolutely, you know, exclamation point.

And what that led to was Ken Chesebro working still with Troupis, but also directly with campaign officials. And, not only at the national level, but in the other states to actually draft up the certificates that each state would use to have its fraudulent electors meet on December 14, sign these certificates. He drafted up the instructions for them about how many copies to make, what kind of envelopes to put them in, who to send them to.  So he was then very much involved, to your question,with communicating nationally, as well as within the states.

But always with, with Troupis, you know, in the loop. Early on, before we got to the point of him working up and drafting the certificates, you know, he was pushing Troupis, have you sent various memos up and who did you send it to in the campaign? And he said, basically, I went right to him, Troupis basically said, I went right around that campaign person, Justin Clark, to the real decision makers in the White House. So it was that access that allowed this to, to, to come to fruition. And that also, that access eventually got to Rudy Giuliani. Rudy Giuliani, you know, kind of took over the scheme and the campaign, you know, put Mike Roman on it as the person to work directly with Ken to make sure that this got implemented in all seven swing states.

Anna Hickey: In these correspondence, like the texts and emails that you all obtained, was there a sense that Ken Chesebro and, you know, Troupis were aware of the seriousness of the, like, scheme and situation they were proposing, of like, the level of subversion, like electoral subversion that they were conducting, or did it seem, was there a level of naivete to it?

Mary McCord: No, no, no. They knew exactly what they were doing. In fact, it was by, you know, in the first memo, this was really kind of this contingency plan. Right. But by December 6th, Chesebro was making clear, there really doesn't have to be litigation pending on January 6th. Right. We need the, the, the electors to vote on December 14th so that these electoral ballots have been cast and there we have the certificates. But on January 6th, there can be, you know, Republican senate, senators who will filibuster to make sure the votes from these states of the Biden/Harris electors are not counted. And he, you know, he laid out a scheme for that.

He laid out a scheme by which Vice President Pence, literally, he tells it in a step by step process of what would happen on January 6th. That he would go to open up the Arizona ballots, say there's two sets. I'm going to set these aside. We're not going to count these at all. And he would do that throughout the counting of the ballots. This is if he wouldn't, wasn't willing to count the fraudulent ballots himself. He would just say, we're going to reject ballots from those states, get to the end and say, now, Mr. Trump has a majority of the votes, so he should be declared the winner. And it, when that, he even went so far as to say when that provokes, I think his words were howls from the Democrats, then they could say, okay, well, then it goes under this 12th Amendment. The result is the same Trump wins. So they very, very much, he called his strategy bold. He called it unlikely to succeed if it were, if it were to get to the Supreme Court. So this was, these were people who very, very much knew what they were doing and did it anyway.

And I will say that to the extent that anyone thinks, you know, otherwise that they were doing this as a contingency and that after the litigation had failed in the various states that then, you know, they dropped it, there are text messages from Jim Troupis to Senator Johnson the morning of January 6th, still trying to make sure that the Wisconsin fraudulent ballots had gotten to Vice President Pence. Because even though they, you know, had sent them through the mail, they had heard that the, that Pence didn't have them. They had flown a young attorney the day before, flown her to D.C. with them to hand deliver them to Ken Chesebro so that he could get them to Pence. But even still, January 6th, they were worried that Mike Pence did not have the Wisconsin certificates. And Jim Troupis said to Ron Johnson, Senator Johnson, can you help me get these to the vice president? And, and ultimately Senator Johnson came back and said, we're told by the vice president's staff that he will not be accepting anything.

So their efforts, you know, went all the way till January 6th. And in fact, some of the, some of the final text messages and things we have from January 6th show Ken Chesebro sending photos of himself at the Capitol with people like conspiracy theorist Alex Jones. During the riot, we have a Troupis responding with, well done, Ken, history is made, and a clapping hands emoji. And then Ken Chesebro saying, tear gas in the Capitol, I just caught a whiff, lol.

Anna Hickey: Wow. Did the documents you all obtained, did they end at January 6th, or did you see any of the correspondence that occurred after their, you know, plan had failed?

Mary McCord: That, we have seen some things immediately after, you know, we did not get every single document that exists in the world. We did get a very, very substantial tranche from Ken Chesebro and also from Jim Troupis. But there are, you know, there are, there exists from various sources, some documents after that. We were primarily concerned with showing how the scheme led to and was integral to the attack on the U.S. Capitol.

Anna Hickey: Kind of going to what you had mentioned earlier, which is the recent news of the week, which is that Wisconsin Attorney General Josh Kaul announced criminal charges against Kenneth Chesebro, Troupis, and then also another important actor in this fake electors plot, Michael Roman, because of their involvement. So, what was your, like, first reaction to these criminal charges when you, like, heard that they were, they were being brought?

Mary McCord: Well, you know, I, I was relieved to see it. I mean, we did, you know, our work did result in there being some accountability and some transparency in what happened. But, you know, this is, this is criminal conduct. And other states had returned charges and it seemed to me that it was warranted. So I, I was gratified to see that the attorney general in Wisconsin had, had taken this step and particularly because he was holding people accountable, those who were actually responsible for concocting and executing this scheme.

Now, notably, he has not charged any of the 10, he calls them unappointed electors, rather than fraudulent electors. And that could be because they're cooperating. It could be because he reached some sort of other agreement with them. It could also be because he feels like these other three were the ones who were mostly responsible. And that's the electors while culpable, because as I indicated, our evidence suggests that by December 14th, they knew that this really wasn't legit and went ahead and did it anyway. But certainly their culpability, at least for some of them, not all of them, I would argue is less than that of those who came up with the scheme and they were doing what they the campaign directed them to do. Again, that doesn't necessarily excuse it, but I could see as, you know, I'm a former prosecutor, I could see making some judgment calls here about who is most deserving of felony charges.

Anna Hickey: Was there anything new in the charging document that was not in the documents you received in the settlement, or did it seem, you know, primarily duplicative or even based off of the documents that you all received in the settlement?

Mary McCord: You know, I have, I have read it quickly. I, it is possible. I missed something that would be new, but most of what I saw in here are, or maybe everything I saw in here are things that I was aware of through our litigation or through the work of the House Select Committee or other things that are publicly available. And have certainly through the course of the investigation, the attorney general, you know, he has access to a lot of these Chesebro materials. He cites them in the charging document as the basis for the charges. And so, I think what he is rea-, was reacting to and his team, of course, at the attorney general's office and the investigators involved were this conspiracy, and that's what's charged, a conspiracy to commit the crime of uttering as genuine, a forged writing or object, namely the certificate of votes of the 2020 electors. And that is about this conspiracy, again, to put forth this fraudulent document.

Anna Hickey: One of the men who's being charged, Michael Roman, was not involved in your civil litigation. Was there a reason you didn't include him with Chesebro and Troupis?

Mary McCord: So, you know, at the time, it's interesting because this is the nature of litigation, right? And as you learn more, you think, oh, we should have charged, you know, we should have sued this person and that person and the other person. Now I will say, you know, there's others to, to be honest with you, others in the Trump campaign, attorneys in Wisconsin who bear quite a bit of culpability. And, but we didn't learn that until we were well, well into things and we were in the throes of settlement and so we elected not to sort of like amend our complaint, you know, two years in to add additional defendants. They are revealed, their names are revealed in the documents we made public.

And same with Mike Roman. I don't, we didn't have the same knowledge when we brought the litigation that we have now about sort of his role in helping to make this effort actually come to fruition and orchestrating, you know, In the states that, that the fraudulent electors would show up and, and vote on December 14th. I will note that I believe that the attorney general of Wisconsin in his press conference did indicate that the investigation is ongoing. So, you know, it is possible that there would be superseding charges that could add additional people

Anna Hickey: Kind of focusing on Ken Chesebro, because he has been brought up in a lot of other state level litigation. Last November, I believe it was CNN reported that Chesebro was cooperating with investigators in Michigan, Wisconsin, Nevada, Arizona, after he had pled guilty in Georgia due to his involvement. This may be a little bit out of scope of your realm of knowledge, but it was reported that he was cooperating with, you know, investigators in Wisconsin. But then this week it was announced that they charged him. I was wondering if you had any idea of what would have led to a breakdown of cooperation or if you, you know, why he was charged in Wisconsin and not, say, Michigan or Nevada?

Mary McCord: Yeah. So I, you know, that would really be speculation on my part. And I, I will just say sort of as a general matter, having, you know, been a prosecutor for a couple of decades, that sometimes someone with whom you think you're going to have a cooperation agreement and maybe, you know, as a result of that, maybe not bring charges. Sometimes that person might do something in the course of the supposed cooperation that is makes a false statement or isn't completely truthful or honest, or just really isn't complying with the terms that you are envisioning for a cooperating witness. And so sometimes that kind of thing will fall apart.

Again, I do not know that, what the situation is here in Wisconsin. I just want to be very clear about that. I am not privy to any communications. I don't know if it was ever even contemplated that there would be something formal, like a cooperation agreement that says we won't charge you versus what has been, you know, what we know from public reporting, if true, is that he was being cooperative, right, in providing some things. That's very different than entering a cooperation agreement. So it could be, they never even talked about not charging him and he was just hoping that he wouldn't get charged. But even if they had had those conversations, there can still be reasons that those break down.

Anna Hickey: The path in Wisconsin to holding these fake electors accountable has looked pretty different than in other states where you've seen criminal charges first. Are there lessons that you think can be learned from the strategy of using civil litigation first in Wisconsin that could be replicated in other states, or because there's criminal charges already going on there it's, you know, closed.

Mary McCord: Yeah. You know, I mean, just in terms of resources, you know, as an organization ICAP is less interested in replicating this in other states now because there has been accountability in many of those states and there are criminal charges. And so, because again, to go back to why we did this at the beginning with our co-counsel and with importantly, the plaintiffs, right, the legitimate electors, is we all felt like there is a, there is something very significant here that has not been told. That was a key part of what led to the attack on the Capitol on January 6th led to this effort, you know, for the only time in our history to completely undermine and overturn the results of a presidential election. And this just, to us really screamed out for accountability.

Well, now, you know, we're getting accountability. It's been slow, but we're getting it not only through state prosecutions, but also through, you know, the federal special counsel, Jack Smith's prosecution of Donald Trump. Which right now he's only charged Donald Trump. And right now that case is hung up in the Supreme Court that still has to decide on whether Donald Trump should be immune from criminal prosecution. But that indictment does mention a series of unindicted coconspirators, including Ken Chesebro, by the way, and tells the story as well. So with that accountability that we're seeing the need for other civil litigation seems at least to me as a litigator, to be less of a, of a priority. And so at least for ICAP, we're, you know, we're putting our resources elsewhere right now.

Anna Hickey: Now, looking ahead to the 2024 presidential election, it'll be, you know, very similar to 2020. It'll be the same to people at the top of the ticket, Biden versus Trump. Have you seen any evidence or indication that there is a threat of another fake elector scheme occurring if former President Trump loses again this fall?

Mary McCord: I mean, no. We've seen a lot of bad things that are being discussed. I think that these criminal, the criminal cases, the civil litigation, the House Select Committee investigation is a pretty big disincentive, at least for at the elector level. I mean, what those in the campaign who are still, you know, basically espousing, not basically, who are still very much espousing the false narrative that the 2020 election was a result of fraud and that Donald Trump was the real winner.

And there's even reportings that there's just, that's almost a litmus test for work at the RNC now, which of course, you know, Donald Trump's own daughter in law is a major figure there. So there's a lot of just continued disinformation, false statements being made about 2020. And there may be people sort of at the national level who are thinking about other ways to subvert election results, potentially additional pressures on state legislatures and things like that. But I think for the people on the ground who are actually, you know, will be nominated later this summer during the conventions to be, or during the process to be Republican electors, I would think, would really think twice about participating in anything like this again.

Now I will note, you know, some people say, oh, the Electoral Count Reform Act, wouldn't that just take care of it. And, you know, not really. I mean, the Electoral Count Reform Act is important and it makes some substantial changes, including making very, very clear that the role of the vice president presiding as president of the Senate on January 6th is ministerial only. But that does not. Prevent electors, fraudulent electors from meeting, sending up their ballots and still hoping through other means, right, to get members of Congress to select those ballots instead of the legitimate ballots, or to use again, pressure on state legislatures to say, ah, we've had a failed election. We're going to send up our own. There are rules in the Electoral Count Reform act about redoing elections that would try to prevent that. But I guess the point being is there is still wiggle room for bad actions.

Anna Hickey: And then do you have any kind of final thoughts on what accountability has looked like either in a civil or criminal sense for the fake electors since, you know, December 14th, 2020 or January 6th, 2021?

Mary McCord: So, so right now, you know, most of the criminal cases are still in that pending status, as opposed to having gotten through a trial with any kind of a guilty verdict. But what, so we haven't had that type of accountability yet. But there's still accountability in the sense that there are people who are under charges. They are right now, you know, facing charges and that's, that's significant. And the story is out there, right. And it's out there in ways that, you know, I don't want to say are irrefutable because a good defense attorney will find ways to try to raise reasonable doubt in a criminal prosecution. But the documents we have, these are text messages. These are emails with people's names on them to and from people involved. They're their words. And so short of attacking sort of, you know, the, the province of those documents and are they actually valid and legitimate as opposed to something that's been concocted. You know, it's going to just be hard to get around what so many of the documents show.

So I, you know, we're, we're still in the process of full accountability, but I'd say right now there is so much more knowledge out there and material available for the public to understand what happened so that hopefully we will not see anything like this again. Because even if there might be some people who are wanting to kind of try to do something similar to undermine 2024, there hopefully are enough mechanisms and people to prevent that from being successful.

Anna Hickey: And on that potentially hopeful note, I think we'll leave this conversation there. Thank you so much for joining us today.

Mary McCord: It was my pleasure.

Anna Hickey: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our material supporters.

Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies, and the Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja and your audio engineer this episode was Cara Shillenn of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.


Anna Hickey is the associate editor for communications of Lawfare. She holds a B.A. in interdisciplinary studies: communications, legal studies, economics, and government with a minor in international studies from American University.
Mary B. McCord is currently Legal Director and Visiting Professor of Law at the Institute for Constitutional Advocacy and Protection at Georgetown University Law School. She is the former Acting Assistant Attorney General and Principal Deputy Assistant Attorney General for National Security at the U.S. Department of Justice and was a long-time federal prosecutor in the U.S. Attorney’s Office for the District of Columbia.
Jen Patja is the editor and producer of the Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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