The three fake Republican electors charged in Georgia's election subversion case will try to convince a federal judge on Wednesday to move their case into federal court.
Former Georgia GOP chair David Shafer, Georgia state Sen. Shawn Still and former Coffee County GOP chair Cathy Latham are the latest defendants in the sprawling racketeering case to attempt this legal maneuver. They have all pleaded not guilty.
If they succeed, they'll have a better shot to get their charges dropped, or at least have more favorable conditions at trial. But they'll face an uphill climb. Federal officials can move state cases into federal court, where they can invoke immunity protections for US government employees. But these fake GOP electors weren't federal officials in 2020.
Instead, they're pushing a novel legal theory that they were acting as "contingent presidential electors," under the direction of then-President Donald Trump and pursuant to the US Constitution, which spells out the Electoral College process. Thus, they were essentially federal officials and should be treated as such, their lawyers argue.
US District Judge Steve Jones has already rejected a request from Trump's White House chief of staff Mark Meadows to move his case from state to federal court. And Jones was skeptical at a Monday hearing on the same topic for Trump-era Justice Department official Jeffrey Clark. Jones hasn't issued a ruling yet in the Clark matter.
Trump is also expected to try to move his case. Meadows has appealed the decision in his case, claiming the judge "ignored precedent" and committed "multiple errors."
Fulton County District Attorney Fani Willis, who brought the charges, wants these cases to all stay in state court, and says the "sham electors" weren't acting as federal officials.
"(Shafer) impersonated a 'presidential elector,' and based on nothing more than that pretense, he insists on legal recognition of that status," prosecutors wrote in a recent filing. "His position is the equivalent of claiming that a homemade badge could transform him into a genuine United States Marshal with all the powers afforded that role."
There's no indication that any witnesses will testify on Wednesday, including the trio of fake electors, who all waived their right to appear at the hearing in downtown Atlanta.
They submitted an affidavit from a law professor who specializes in bankruptcy law, who argued that they acted in a "reasonable, proper, and lawful manner" after the 2020 election. Shafer filed an affidavit from Brad Carver, who was also a fake GOP elector but wasn't indicted. It's up to the judge whether to accept these affidavits as evidence.
The burden of proof is on Shafer, Still and Latham to convince the judge that they deserve federal protections because they served as electors for the losing presidential candidate. Derek Muller, an election law expert who teaches at the Notre Dame Law School, said he believes it'll be a "heavy lift" for their argument to prevail in court.
"There's extensive Supreme Court precedent that presidential electors are not federal officers, but merely exercise a federal function, something the United States Constitution empowers them to do," Muller said.
