Charges against Trump include effort to subvert Electoral College

Republican presidential candidate and former President Donald Trump arrives for a campaign rally in Erie, Pennsylvania, July 29, 2023. [AP Photo]

The historic indictment charging former President Donald Trump with conspiring to overturn the results of the 2020 presidential election alleges, among other things, that Trump and his advisers orchestrated an elaborate plot to undermine the workings of the Electoral College, one of the least understood elements of the U.S. election system.

The indictment, released Tuesday, charges that Trump sought to create confusion surrounding the outcome of the election, which he lost to President Joe Biden, by causing individuals in seven states to send fake election results, known as electoral votes, to Congress.

The hope, according to prosecutors, was that the appearance of the false results alongside officially verified results would give Trump's allies in Congress justification to claim that the results of the election were unclear and to delay the certification of Biden's victory.

At minimum, the delay would have provided Trump's team with more time to contest the result. If the fake results were ultimately accepted - a result that most experts say would have been illegal - the shift in votes across the seven targeted states would have made Trump the winner.

In the end, Congress ignored the fake electoral votes and certified Biden's victory, but only after a mob of thousands of Trump supporters stormed the Capitol, forcing the evacuation of Congress, injuring many police officers and contributing to several deaths.

Trump responds

Trump, who is the leading contender for the Republican presidential nomination in 2024, released a statement angrily denouncing the decision to charge him as "election interference" and decrying the charges against him as "fake."

"The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes," it read. "President Trump has always followed the law and the Constitution, with advice from many highly accomplished attorneys."

Tuesday's indictment was filed in federal court in Washington. Trump is also facing a federal indictment in Florida over his retention of classified national security documents after leaving office, and state-level charges in New York for orchestrating an illegal scheme to pay hush money to a former adult film actress during the 2016 presidential election. It is also widely expected that Trump will soon face state charges in Georgia related to his effort to reverse the outcome of the 2020 presidential election in that state.

The Electoral College

The indictment accuses Trump and several unnamed associates of persuading people in seven targeted states - Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin - to pose as legitimately selected electors. Electors are individuals who play a key role in U.S. presidential elections.

The United States elects presidents through a complex system that involves an entity called the Electoral College, which exists for the sole purpose of choosing the next president every four years.

The Electoral College is made up of 538 individual electors, apportioned to the states and the District of Columbia. Before Election Day, the parties of each candidate name a slate of electors, who pledge to cast a vote for that party's candidate in the Electoral College if their candidate wins the election in their state. Pledged electors whose candidate loses have no authority to cast electoral votes.

On Election Day, the 50 states and the District of Columbia all hold elections according to local election laws. When Americans cast their votes for president, they are technically not voting for a specific candidate. Rather, they are voting for the slate of electors who have pledged to vote for their preferred candidate when the Electoral College convenes.

Federal requirements

According to federal law, presidential elections are held on the Tuesday after the first Monday in November. After the election, federal law further requires officials in each state to ascertain the identities of the electors who were chosen by the voters.

This ascertainment is the practical equivalent of declaring one candidate the winner of a state's election, and that is how the process is typically characterized in the news media. In all but two states, electoral votes are awarded on a winner-take-all basis. In Maine and Nebraska, it is possible for each candidate to receive a partial share of the state's votes.

Then, on a date also specified by federal law, all the electors in each state and the District of Columbia assemble to formally cast their votes for the president. Those votes are counted and certified by the state executive - typically the governor - and are sent to Congress.

On the sixth day of January following the election, members of both houses of Congress meet in a joint session, at which the sitting vice president oversees the formal counting of the electoral votes. To win the presidency, a candidate must receive a majority of the 538 electoral votes, meaning 270 or more.

In a typical U.S. election, every part of this process after the ascertaining of electors is considered a formality. Once the results in each state are declared, it is a simple matter to determine which candidate will receive the most votes when the Electoral College convenes, and that person is considered the president-elect.

However, there was nothing typical about the aftermath of the 2020 presidential election.

Claims of fraud

The indictment alleges that Trump and his associates attempted to subvert the Electoral College in the aftermath of the election on November 3, 2020.

Immediately after it became apparent that he had lost the election, Trump and his allies began spreading claims that the results in many of the states that Biden won had been fraudulent. Those claims were untrue and were eventually proved false in dozens of lawsuits.

However, while holding out hope that they might be able to persuade some state officials to change their results, Trump's associates began contacting individuals who had been the former president's pledged electors in several targeted states.

According to the indictment, Trump and his associates persuaded these individuals to agree to meet on the same day as the certified electors and to hold an election in which they would declare that Trump had received their electoral votes, even though they had no legal authority to cast electoral votes.

Shifting plans

At first, the effort was characterized as an attempt to "preserve" an alternate slate of electors in each of these states in case efforts to get officials to overturn state election results were successful. Some of the individuals who participated in the scheme did so in the belief that their votes would not be sent to Congress unless their states officially declared Trump the winner.

However, according to prosecutors, the plan changed in the weeks following the election. The indictment presents evidence that Trump and his associates ultimately decided that they would cause the false vote counts to be sent to Congress regardless of the outcome of their efforts to change election results in the individual states.

The indictment alleges that an attorney working on Trump's behalf provided detailed instructions for the creation of fraudulent votes to be sent to Congress. In the end, seven slates of fake electors sent results to Washington before the January 6 joint session of Congress.

State-level prosecutions

While the fake electoral votes were not accepted by Congress, many of the individuals who signed the false certifications have either been charged with crimes under state laws or remain under investigation.

In Michigan, the state attorney general has charged 16 people with forgery and conspiracy to commit forgery for claiming to be duly chosen electors for Trump and submitting fake votes to Congress.

In Georgia, an investigation into the submission of fake electoral votes is ongoing, but at least eight of the 16 people have accepted plea deals with prosecutors that will allow them to avoid prosecution. The remainder may still face charges.

Prosecutors in Arizona, New Mexico and Wisconsin are conducting investigations.

In Pennsylvania, the fake electors demanded that the document they signed include language specifying that they were only claiming to be duly chosen electors if state officials changed the election results to declare Trump the winner. They are, therefore, expected to avoid criminal prosecution.

In Nevada, prosecutors have announced they will not pursue a case against that state's fake electors, saying that state laws did not support any charges.