The author Mr. Moskowitz is a retired Pennsylvania lawyer whose wife was a 2020 elector. In the book, he examines the DOJ indictment of Donald Trump for the Jan. 6, 2021, attack on the Capitol, and the Fulton County District Attorney’s RICO indictment of Trump and 18 co-defendants in Georgia. This is the first book to examine these two Trump indictments.
In this excerpt, Moskowitz discusses Arizona, the alternate electors, and the pivotal legal case of Gohmert v. Pence, The issue that was resolved in this case was that Gohmert and the alternate electors who were the plaintiffs in the case did not have standing to challenge the validity of the electors certified by the Arizona Governor. The electors appointed by the Governor cast their votes for Biden, who had won the popular election in Arizona.
Chapter 2 – The 2020 Presidential Election
On the morning of January 6, 2021, Vice President Pence was meeting with two members of his staff, Marc Short and Greg Jacob, to finish a letter that he was writing to deliver to President Trump. Jacob called Richard Cullen, who was Pence’s personal lawyer in 2017. Cullen called J. Michael Luttig, who had retired as a federal judge. Years earlier, Luttig had as his law clerk John Eastman. Luttig told Cullen: “You can tell the vice president that I believe he has to certify the electoral college vote today.”30 Luttig sent a statement to Cullen, who incorporated it into Pence’s letter.
Pence released his short letter minutes before 1 p.m. on January 6:
“As a student of history who loves the Constitution and reveres its Framers, I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress, and no Vice President in American history has ever asserted such authority.”
This leaves open the question of whether the limited authority of the vice president is based upon the enacted law or a customary rule, and, if it is a customary rule, is it a customary rule with or without the force of law? Ultimately, regardless of the answer to that question, Vice President Pence decided not to proceed in accordance with Eastman’s plan. Hence, he should be credited with having saved American democracy and the peaceful transition of power after a presidential election.
In a pivotal case, Gohmert v. Pence, Pence’s authority to control the outcome of the election was not the direct issue resolved in the case.31 The issue that was resolved in this case was that Gohmert and the alternate electors who were the plaintiffs in the case did not have standing to challenge the validity of the electors certified by the Arizona Governor. The electors appointed by the Governor cast their votes for Biden who had won the popular election in Arizona. I turn to this case below.
2.4 The alternate electors
While it was not generally known at the time, when the duly appointed electors were meeting on December 14, 2020, the day of the Electoral College’s official vote, other meetings were taking place. There was an organized effort to implement the strategy of the Eastman memos. Republicans in Wisconsin, Arizona, New Mexico, Nevada, Georgia, Michigan, and Pennsylvania were meeting in their respective state capitols as alternate electors. Trump had lost the popular vote in all seven battleground states. The strategy was to submit to Congress phony certificates declaring that the alternate electors were the true electors.
On December 14, 2020, Republican electors met in the state capitols in the seven states. They proclaimed that they were “duly elected and qualified” members of the Electoral College, and they sent signed certificates stating that Donald Trump had won the election in their respective states. All seven of these states were states in which Biden had won the popular vote. The officially approved Biden electors also met in the state capitols. They also sent signed certificates stating that the electoral college votes in their respective states were being cast for Biden.
The plan was to have alternative slates of electors. Both groups of electors, the legal electors, and the alternate electors, met on December 14 to cast their votes for president and vice president. The alternate electors in the seven battleground states also met in their state capitols and cast their votes for Trump even though Biden had won the popular vote in those states. Congress and/or Vice President Pence could consider these alternate slates of electors to be the legitimate electors in those states. This had happened before. In the 1960 election, Hawaii had two slates of electors. One had been supported by the Republican Governor and the other by the Democrats.
The Republicans claim that in 2020 they were doing the same thing that the Democrats did in the 1960 election. In 1960, Senator John Kennedy was running against Vice President Richard Nixon. It was a very close election in Hawaii and the difference was only 200 votes. Nixon was declared the winner, but, on a recount, it appeared that Kennedy had won the state. Meanwhile, there were two slates of electors appointed who both sent in certificates proclaiming their candidate as the winner.
On January 6, 2001, Richard Nixon, who was the Vice President and the presiding officer in the Senate for the counting of the votes, suggested that the Democratic electors’ certificate should be counted. At the time, Nixon said he did so “without the intent of establishing a precedent”. In other words, Nixon was acting in accordance with a customary rule without the force of law in accepting the certificate of the candidate who won the election in Hawaii. Kennedy did not need the three electoral college votes from Hawaii to be the winner in the national election.
In five of the seven battleground states in 2020, the alternate electors used the exact same language in the certificates that they all signed. In two of the seven states, New Mexico and Pennsylvania, the wording of the certificates was altered. In these two states, the alternate electors were submitting their certificates only if the lawsuits filed by the Trump supporters were successful in establishing that the election had been fraudulent.
In Michigan, Dana Nessel, the Attorney General of the State of Michigan, had been in the Senate Chamber in the state capitol when the electors met to cast their vote. She observed the process as an interested spectator. She did not know at that time that there was an alternate group of Republican electors also meeting in the state capitol, following the same procedure as the lawful electors. She referred the issue of the alternate electors to the Department of Justice as an illegal conspiracy to obstruct the peaceful transfer of power after the election. She maintains that Michigan law requires that the electors meet in the Senate Chamber, and she was there when the electors met. The alternate electors were not there. It is her contention that submitting the false certificates to historical archives and governmental officials constituted an “open-and-shut case of forgery of a public record,” which is a criminal offense.32
These activities in the seven battleground states were part of a planned scheme to change the result of the election and keep Trump in office. The effort was organized by the Trump campaign workers and Trump’s attorneys. There can be no doubt that this effort was organized and conducted to prevent the peaceful transfer of the power of the presidency.
The New Mexico Attorney General, Hector Balderas, said that he also had referred the matter to federal prosecutors. The Attorney General in Wisconsin, Josh Katal, also agreed that the sending of the false certificates was a criminal act.
As more information is becoming available, there can no longer be any doubt that the scheme of having alternate electors was an organized attempt to interfere with the peaceful transfer of power. It is also apparent that many of the participants in this conspiracy were aware that the purported legal basis for the proposed action was weak. In other words, the participants knew that what they were doing was illegal.33
The House of Representatives has appointed a Select Committee to investigate the events involving the counting of the votes on January 6, 2020, when a mob attempted to disrupt the proceedings. I will briefly discuss the activities of the Committee in relation to the Eastman memoranda in section 3.3. This Committee has subpoenaed several of the alternate electors to testify before the Committee. As of this writing, they did not testify.34
2.5 Arizona and Gohmert v. Pence
Gohmert v. Pence involves the events in the 2020 Arizona election. Former President Donald J. Trump did not prevail in Arizona. He lost by a little more than 10,000 votes. He had won the election in Arizona in 2016 by approximately the same margin. Both before the election in 2020 and after the election, he claimed that the voting in Arizona would be, and was, rigged and that he had won the 2020 election in Arizona by a wide margin.
After the election, Trump and his attorney Rudy Giuliani called Rusty Bowers, the Republican Speaker of the House of Representatives in Arizona. They asked him to reverse the election results because it was a fraudulent election. They asked him to reconvene the Arizona Legislature and to recall the Biden electors. He was skeptical about their claim and asked for evidence. This was followed by a meeting on December 1, 2020, in a conference room of the Arizona Senate. In attendance at this meeting were Giuliani and his associates, Speaker Bowers and Senate President Karen Fann, also a Republican. Bowers was still unconvinced, but Fann seemed more receptive to doing something in response to the claim of a fraudulent election.
During the next few weeks, there was an effort by the two Chambers in Arizona to agree upon a course of action. Both Chambers were controlled by the Republican Party. Their focus and that of Trump and his allies was on Maricopa County. Trump lost that county by 45,100 votes, though he had won it by a similar margin in 2016.
The three Republican Representatives in Congress from Arizona sent a letter to the Maricopa County Board of Supervisors before the election results were certified, asking them to audit the voting in that county. The Board, however, decided to certify the votes. The Republican Governor Doug Ducey and Democratic Secretary of State Katie Hobbs signed the official canvas confirming the Arizona election results for Biden. As Ducey was signing the certification, he received a phone call from the White House, which he silenced.
The Republicans in Arizona, even though their candidate had lost the election, selected an alternate group of electors. This was part of the Eastman plan to overturn the election results. The Congress received two certifications of the voting in Arizona, one from the official electors and one from the alternate electors.35 One was legal, and one was not legal. This conclusion is based upon a mixture of constitutional law, federal law, state law and customary rules.
Trump and his allies filed eight lawsuits specifically challenging the Arizona election results, one of which is Gohmert v. Pence. The plaintiffs in the Gohmert case are Louis Gohmert, a member of the U.S. House of Representatives from Texas and the slate of Republican electors for the State of Arizona. They were not the official electors since Trump did not win Arizona.36 Gohmert is a congressman, an attorney, and a former judge. Judge Jeremy Kernodle, who decided the case at the trial level, was appointed by Trump.
The defendant is Michael R. Pence, in his official capacity as the vice president of the U.S. The vice president of the U.S. is, as I have already mentioned, the presiding officer in the U.S. Senate with the ceremonial role in the election vote counting procedure. The case was filed in the United States District Court for the Eastern District of Texas, Tyler Division. The issue in the lawsuit is that “Vice President Mike Pence should ultimately decide which electoral college votes to count when Congress meets January 6 to accept the election results”. The relief requested specifically seeks to require that Pence not accept the electoral college votes from five states (Arizona, Georgia, Pennsylvania, Wisconsin, and Michigan), which would be enough to overturn the results of the election.
The lawsuit claims:
Under the Twelfth Amendment Defendant Pence has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electoral votes, or whether none, shall be counted.
This legal theory is one of the alternatives mentioned in the Eastman memoranda.
The plaintiffs lost the case. The procedure for selecting the electors is left to the state legislatures.38 The Arizona legislative leaders did not accept the argument that they had the authority to overturn the results of the election. After the disputed presidential election in 1876, a dispute that was resolved peacefully, the Congress adopted the Electoral Count Act.39 This Act makes the certifications of the respective states “conclusive” regarding the counting of the electoral college votes.
On December 14, 2020, the members of the Electoral College met in their respective states and cast their votes in accordance with the popular vote in their state.40 Since the Democratic Party had won the popular vote in Arizona, the 11 electors selected by the Democrats voted for Biden and Harris. Their votes were then certified by Governor Ducey and Secretary of State Hobbs and sent to the Congress.
The plaintiff Republican electors in the Gohmert case claim that they also met in Arizona on that date and cast their votes for Trump and Pence (the same Pence who would preside in the Senate). In total, 73 electoral college votes were challenged in the so-called “contested states” (in addition to Arizona, Georgia, Wisconsin, Michigan, Nevada, New Mexico and Pennsylvania). In the Gohmert lawsuit, the Vice President did not support the plaintiffs’ motion for an injunction that would have prevented him from performing his duties under the Electoral Count Act.
The Court of Appeals did not reach the merits of the case and did not decide what the role of the vice president is in the electoral process.41 The Court of Appeals made its decision with a per curiam opinion. The case was decided by a panel of three Circuit Judges, without naming an author of the opinion. This is not an uncommon practice.42
Excerpted from “The Judge and the President: Stealing the 2020 Election” (Huge Jam Publishing, September 8, 2023), by David Moskowitz.
Published with permission:
©David H. Moskowitz/Huge Jam Publishing, 2023
Author: Michael Bryan