Wisconsin is the last state that may prosecute Trump’s fake electors, but AG Josh Kaul is mum

After Arizona became the fourth state to bring charges against fake electors involved in the Trump campaign’s alleged scheme to overturn the 2020 presidential election Wednesday night, eyes turned to the three remaining states where the effort took place: New Mexico, Pennsylvania, and Wisconsin.

Officials in New Mexico and Pennsylvania have said they are unlikely to prosecute Trump allies who sent documents to then-Vice President Mike Pence purporting to certify Trump won the election in their state, because those fake electors placed certain limits on their claims. That leaves Wisconsin as the state most likely still to pursue charges.

Prosecutors had already filed charges in Michigan, Nevada, and Georgia. In Georgia, defendants include Trump himself, former White House Chief of Staff Mark Meadows and former New York City Mayor Rudy Giuliani. And Trump is facing federal charges in Washington, D.C. for conspiracy and obstruction related to the nationwide fake elector scheme. Trump has asked the Supreme Court to declare him immune from those charges.

The top law enforcement official in Wisconsin hasn’t tipped his hand on whether his office is investigating the issue at all, but he also hasn’t ruled out prosecution.

Gillian Drummond, a spokesperson for Wisconsin Attorney General Josh Kaul, a Democrat, said the department “does not confirm or deny the existence of an investigation, except in unique public safety circumstances” but that Kaul “believes that those who committed crimes in an effort to unlawfully subvert the outcome of an election should be held accountable.”

Wisconsin was key in the Trump campaign’s fake elector scheme

Ten Wisconsin Republicans signed a document falsely saying they were “the duly elected and qualified electors” for the state, that they had met in Madison, and all had voted for Trump. But they weren’t duly elected or qualified because voters in Wisconsin chose Biden by a margin of just under 21,000 votes.

The fake elector scheme was largely rooted in on a memo that came out of Wisconsin, where a recount in the close race was underway, according to the U.S. Department of Justice indictment of Trump. The memo advocated that a slate of Trump electors should meet and vote for him in case Trump won the recount.

The indictment said Trump’s campaign and others “took the Wisconsin memo and expanded it” to states that Trump said he was contesting, “even New Mexico, where the defendant had lost by more than ten percent of the popular vote.”

Biden won the recount, and Wisconsin’s governor, Democrat Tom Evers, declared Biden’s electors the legitimate ones from the state.

The fake electors wrote in their certificate that they met and voted for Trump on Dec. 14, 2020, the same day that the state supreme court rejected the Trump campaign’s legal challenge. State officials continued rejecting the false claim that Trump won Wisconsin.

While the 10 Wisconsin fake electors have not faced criminal charges, two of the legitimate electors from 2020 sued them along with two lawyers, Jim Troupis and Kenneth Chesebro, involved in the scheme. The Republicans settled the case.

“This is a scheme to overturn the election that was launched here in Wisconsin and then metastisized to those other six states,” said Jeff Mandel, a lawyer with the left-leaning group Law Forward, which represented the legitimate electors. He called Troupis and Chesebro “the linchpins of the scheme for the whole nation.”

Electors in Pennsylvania and New Mexico unlikely to face charges

In Pennsylvania and New Mexico, the fake electors didn’t claim to be the real electors, only the electors whose votes should be counted if Trump succeeded in getting their states to reverse his loss − an important legal caveat.

Pennsylvania’s Trump electors wrote that their votes for Trump should only be counted “if, as the result of final non-appealable court order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified electors.”

That language represented a watering-down of the original fake electors scheme that Trump’s campaign sought, and was something the campaign didn’t want catching on with other states, according to the Department of Justice’s indictment of Trump for his efforts to overturn the election.

“Though their rhetoric and policy were intentionally misleading and purposefully damaging to our democracy, based on our initial review, our office does not believe this meets the legal standards for forgery,” the office of then-Attorney General Josh Shapiro wrote in a statement to Lancaster Online. Shapiro, a Democrat, is now the governor.

Likewise, New Mexico’s Trump electors wrote that their filing was prepared “on the understanding that it might later be determined that we are the duly and elected qualified electors.”

The office New Mexico Attorney General Raúl Torrez performed an investigation but said the conditional language “prevents the filing of criminal charges.” Instead, Torrez, a Democrat, asked the state legislature to pass new laws safeguarding the state’s elections.

Charges in Arizona, Georgia, Michigan and Nevada range from forgery to racketeering

The grand jury in Georgia handed down the most sweeping and serious case involving the fake elector scheme. The case charged 19 people — including Trump, Meadows and Giuliani — in a racketeering case under a law usually reserved for Mafia bosses.

The Arizona grand jury charged 18 people — including 11 fake electors, Meadows and Giuliani — with crimes including conspiracy and forgery. The indictment lists Trump as an unindicted co-conspirator.

Michigan Attorney General Dana Nessel, a Democrat, charged 16 people with counts that included conspiracy to commit forgery and publishing a false record. The indictment named Trump as an unindicted co-conspirator.

In Nevada, a grand jury indicted six fake Trump electors, several of whom were state Republican officials.