The January 6 Committee has voted to make a criminal referral to the Department of Justice against former President Donald Trump and several of his closest allies. As a practical matter, they needn’t have bothered; the Department of Justice is already actively investigating events pertaining to the 2020 election and its aftermath, as well as Trump’s retention of documents with classification markings at his Mar-a-Lago estate.

That investigation is being spearheaded by Special Counsel Jack Smith, a career federal prosecutor who most recently was prosecuting international war crimes at The Hague. The DOJ has reportedly subpoenaed state and local officials in the seven states, including Georgia, where Trump and his allies filed lawsuits alleging that voting irregularities occurred that were so extreme as the results should have been overturned.

And then there is Fani Willis, the elected District Attorney of Fulton County—an overwhelmingly liberal enclave that includes the city of Atlanta. For nearly two years, Willis, a Democrat, has been investigating Trump’s effort to overturn his defeat in Georgia. Her work on that is finally wrapping up.

During the course of her investigation, Willis subpoenaed many high-powered individuals to testify before the special purpose grand jury—some of whom had to be compelled to appear. Among those summoned were Sen. Lindsey Graham (R-S.C.), former national security advisor Michael Flynn, former White House Chief of Staff Mark Meadows (who was ordered to appear but apparently has not done so), Trump attorneys Rudy Giuliani and John Eastman, former Speaker of the House Newt Gingrich, Gov. Brian Kemp, Georgia Secretary of State Brad Raffensperger, Georgia Attorney General Chris Carr and ex-White House aide Cassidy Hutchison.

David Shafer an indictment “target”

It is unclear who, if anyone, will be charged in connection with Willis’s investigation, but Georgia Republican Party Chairman David Shafer has been designated as a “target” for his alleged role in masterminding a scheme to appoint “fake” electors who would vote for Trump, as part of an effort to overturn the legitimate results of the presidential election in Georgia. If Willis chooses to indict Shafer, that would be a manifest injustice and more about politics and publicity than the rule of law.

The genesis of this investigation was an hour-long telephone call that transpired on Jan. 2, 2021, primarily between Trump and Raffensperger. Others on the call were Meadows, Eastman, Giuliani, three other Trump attorneys (Cleta Mitchell, Alex Kaufman, and Kurt Hilbert), and Raffensperger’s general counsel Ryan Germany. 

On election night, Trump started out with a big lead in Georgia, which slowly evaporated as the night wore on and the next several days passed with ballots still being counted. Allegations of large-scale voter fraud centered on Fulton County. Giuliani, supported by a so-called “smoking gun” video, alleged that poll workers there— after sending Republican poll watchers home—pulled out boxes of ballots from under a table and started counting them. In the end, Biden was declared the winner by 11,779 votes (2,473,633 to 2,461,854). 

Following a recount, Trump’s legal team filed a series of lawsuits in Georgia challenging the results, including one filed in federal court on Nov. 25, 2020, another filed in state court on Dec. 4, and another filed in federal court on Dec. 31, 2020.

As a side note, it has been widely, but misleadingly, reported that during that call, Trump instructed Raffensperger to “find” enough votes to change the outcome, but that Raffensperger declined to do so (see, for example here, here, here, here, and here). What the actual transcript of the conversation reveals is that Trump and his legal team were well aware of the fact that they had to prove in court that either fraudulent votes were cast for Biden or legitimate votes were not counted for Trump that exceeded the 11,779-vote margin or else he was not going to prevail in the pending lawsuit. While Trump stated that “we” need that total, he never suggested that Raffensperger is the person who should find those votes. Indeed, at one point near the end of the conversation, Trump says “All we have to do, Cleta, is find 11,000-plus votes.” Cleta Mitchell was a member of the Trump legal team, not Raffensperger’s staff.

Trump told his attorney to “find votes” 

Regardless of what Trump—who is hardly a model of clarity—meant during that conversation, the Trump team was aware of one deadline as the various lawsuits they had filed were wending their way through the court system: Dec. 14, 2020. On that day, members of the electoral college met in capitals throughout the country to cast their votes for president. On that day, 16 Georgia Democrats met in the Georgia Capitol to cast their votes for Joe Biden. That same day, in a Capitol conference room, a group of Georgia Republicans—since labelled “fake” electors by the mainstream media and liberal activists—met to cast ballots for Trump.

With the exception of Nebraska and Maine, all other states are winner-take-all when it comes to the electoral college—the winner of the popular vote in that state gets all the electoral college votes in that state. Georgia has 16 electoral college votes; a candidate needs 270 electoral college votes to win, otherwise the election is decided by the House of Representatives. 

While all of the so-called “fake” electors (I think a “contingent” slate of electors would be more accurate) have been labelled as “targets” of Willis’s investigation, Willis has singled out Shafer as the person most likely to be indicted. Shafer, it seems, served as a liaison with the Trump legal team and helped to organize the group that appeared that day. 

At the time, Shafer stated that he had been “asked by the president’s lawyers to hold this meeting to preserve his rights under the pending litigation.” Shafer further stated, “Because the president’s lawsuit contesting the Georgia election has not been decided, or even heard, we held this meeting to preserve his rights. Had we not held the meeting, then his lawsuit would effectively be mooted. So, we held this meeting today to assure that, if he prevails in the lawsuit, that there will be electoral votes that have been cast and available to him.”

From a legal standpoint, Shafer “correct” 

What was so significant about that date and why would Trump’s lawyers have advised Shafer, a non-lawyer, to do that? Because federal law (3 U.S.C. § 7) provides: “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.” And the Georgia Legislature has designated the State Capitol as the “place” where those votes are to be cast.

From a legal standpoint, Shafer was correct. Had Shafer and fellow Republican activists not cast ballots that day, Trump would have had no remedy if his longshot litigation had prevailed, the results invalidated, and the Georgia legislature decided to certify the Trump slate of electors instead of the Biden slate of electors. All he would have had was a quintessential Pyrrhic victory. 

If this sounds far-fetched to you, then consider these historical precedents. 

In 1876, during the hotly contested election between Rutherford Hayes and Samuel Tilden, three states submitted dueling slates of electors to Congress.

In 1960, two slates of electors were submitted by Hawaii during the judicially contested election between Richard Nixon and John Kennedy. Following the election, Nixon was originally certified as the winner in Hawaii by 141 votes. Seeking to overturn the results, Democrats filed a lawsuit citing various alleged election irregularities. The presiding judge ordered a recount, but it was impossible to complete the recount by the date that the presidential electors were scheduled to cast their votes. Accordingly, on the date prescribed by law, dueling slates of electors met, one voting for Nixon-Lodge and the other for Kennedy-Johnson. The former was certified as the official vote, and there are no accounts that those who showed up that day to cast their votes for Kennedy-Johnson were labelled as “fake” electors or threatened with criminal prosecution.

And what happened? When the recount was completed, Kennedy was declared the victor by 115, and shortly thereafter, Hawaii’s governor submitted a revised certification reporting that Hawaii’s three electoral college votes should be awarded to Kennedy, not Nixon. Further, Nixon, who, as Vice President, presided over the vote count, asked for unanimous consent that Hawaii’s electoral college votes be counted for Kennedy. Had the contingent slate of the electors not met that day to cast their votes for Kennedy-Johnson, Kennedy would have been out of luck.

And finally in 2000, citing the 1960 election as precedent, Democratic Congresswoman Patsy Mink of Hawaii, the first woman of color and the first Asian American woman to serve in the U.S. Congress, urged Al Gore’s supporters and the Florida legislature to submit two slates of electors from Florida while legal challenges were proceeding in that state. After all, she stated, “As the 1960 experience of Hawaii shows, the Florida recount does not have to be completed until just before the electoral votes are counted.” Was Mink charged with a crime, placed in handcuffs, and carted down to the police station to be fingerprinted and processed?

Of course not. 

Ups and downs for DA Fani Willis 

But will these facts or historical precedents stop Fani Willis? Only she knows for sure. She is, by all accounts, an ambitious politician. Charging Trump, Shafer or any other prominent Republican politician or activist would no doubt burnish her political credentials in liberal Fulton County, where her constituents live, vote, and serve on juries.

But not all has gone smoothly for Willis. A state court judge disqualified her from continuing to investigate another of the so-called “fake” electors– State Sen. Burt Jones—because she hosted a fundraiser for a fellow Democrat who was running against Jones for lieutenant governor, a race that Jones ultimately won. Think about that: she hosted a fundraiser for someone who was running against an individual whom she had already publicly labeled as a target of a criminal investigation that she was conducting.

Don’t think the person whose fundraising event she was hosting didn’t tout that fact; he was quick to release a statement accusing Jones of being “anti-American and unpatriotic” for participating in a “failed attempted overthrow of the American government.” You don’t have to be a lawyer to know that this stinks to high Heaven. Willis shouldn’t have even been at that event, much less serving as a host. 

The bottom line is that party activists should be allowed, indeed encouraged, to participate in the hurly-burly of the political process without having to worry about the criminal law being weaponized against them. No one should be forced to defend themselves against unwarranted, politically motivated charges by an ambitious prosecutor who clearly has her sights set on higher office.

In 1895, Chicago newspaper columnist Finley Peter Dunne coined the oft-repeated phrase “Politics ain’t beanbag.” True enough, but a criminal indictment of David Shafer or any of the other contingent electors under these circumstances would simply be beyond the pale.