The House select committee investigating the January 6 Capitol attack made the case at its fourth hearing on Tuesday that the Trump 2020 campaign tried to obstruct Joe Biden’s election win through a potentially illegal scheme to send fake slates of electors to Congress.
The panel presented a text message sent on 4 January 2021 that appeared to indicate the Trump campaign was seeking to use fraudulent election certificates they would have known were not state-certified to obstruct the congressional certification of Biden’s win.
“Freaking Trump idiots want someone to fly original elector papers to the Senate president,” Mark Jefferson, the executive director of the Republican party in Wisconsin said in the text, seemingly referring to the Trump campaign and then vice-president Mike Pence.
The fake electors scheme – so-called because Republican electors in seven battleground states signed certificates falsely declaring themselves “duly elected and qualified” to affirm Donald Trump won the 2020 election – was part of Trump’s strategy to reverse his defeat.
The select committee believes, according to sources close to the inquiry, that the scheme was conceived in an effort to create “dueling” slates of electors that Pence could use to pretend the outcome of the election was in doubt and refuse to announce Biden as president.
All of this is important because the scheme could be a crime. The justice department is investigating whether the Republicans who signed as electors for Trump could be charged with falsifying voting documents, mail fraud or conspiracy to defraud the United States.
It is also a crime to knowingly submit false statements to a federal agency or a federal agent for an undue end. The fraudulent certificates were filed with a handful of government bodies, including the National Archives, the panel has previously said.
The select committee appeared to make the case that the Trump campaign violated the law: the panel suggested the Trump campaign must have known the certificates were false and suggested the Trump campaign at least intended to submit them to government bodies.
After all, the panel suggested, the Trump campaign must have known they were false since no state legislature had voted to approve a Trump slate of electors, while the text message showed the Trump campaign intended to send them to Congress in time for the certification.
The evidence to connect Trump to the fake electors scheme was less clear.
Congressman Adam Schiff, the select committee member who led the fourth hearing, introduced a text message from the RNC chairwoman, Ronna McDaniel, that was obtained by House investigators, which he suggested showed Trump was directly implicated in the fake electors scheme.
Referring to Trump, the text read: “He turned the call over to Mr Eastman, who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing change the result.”
The text indicated that Trump initiated the call to McDaniel and tried to use the power of his office to pressure the RNC, which could create an inferential case against Trump if viewed in conjunction with other evidence, according to two former US attorneys.
But while Trump’s conduct might warrant him becoming the subject of a criminal investigation, it was not clear how prosecutors might move forward with charges against Trump based on what the panel unveiled about the fake electors alone, the former US attorneys said.
The other major revelation that came from the select committee’s fourth hearing was the fact that at least one Republican senator, Ron Johnson, the senior senator from Wisconsin, tried on the morning of 6 January 2021 to transmit fake certificates to Pence.
According to a text exchange obtained by the select committee, Johnson’s chief of staff, Sean Riley, messaged Pence’s legislative affairs director, Chris Hodgson, seeking advice on how to give the fraudulent certificates to Pence.
“Johnson needs to hand something to VPOTUS please advise,” Riley said. When Hodgson asked what for, Riley gave details, referring to fake Trump slates from Michigan and Wisconsin: “Alternate slate of electors for MI and WI because archivist didn’t receive them.”
The text exchange appeared to show that Johnson intended to transmit false documents to a federal agency or agent. It was not clear whether Johnson knew that they might be used as cover for Pence to reject Biden’s win, but it did suggest he knew what the package was.
Proving that last element would be crucial in pursuing charges in the fake electors scheme, the former US attorneys said. It would probably not be enough to just show that Johnson wanted to submit fraudulent certificates to Congress.
A spokesperson for Johnson said on Tuesday the senator – then the chairman of the Senate homeland security committee and ardent defender of Trump on Capitol Hill – had “no involvement in the creation of an alternate slates of electors and had no foreknowledge”.
The statement addressed accusations never leveled at Johnson. The key question remained whether Johnson knew the certificates were fake – since neither Wisconsin nor any other states certified Trump electors – and whether he tried to give them to Pence for an undue end.
Note: This post was updated to clarify the former US attorneys’ titles.