The Trump fake electors plot was an attempt by U.S. president Donald Trump and associates to have him remain in power after losing the 2020 United States presidential election. After the results of the election determined Trump had lost, he, his associates, and Republican Party officials in seven battleground states – Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin – devised a scheme to submit fraudulent certificates of ascertainment to falsely claim Trump had won the Electoral College vote in crucial states. The plot was one of Trump and his associates' attempts to overturn the 2020 United States presidential election.
The intent of the scheme was to pass the illegitimate certificates to then-Vice President Mike Pence in the hope he would count the fake electoral college ballots, rather than the authentic certificates, and thus overturn Joe Biden's victory. This scheme was defended by a fringe legal theory developed by Trump attorneys Kenneth Chesebro and John Eastman, detailed in the Eastman memos, which claimed a vice president has the constitutional discretion to swap official electors with an alternate slate during the certification process, thus changing the outcome of the electoral college vote and the overall winner of the presidential race. The scheme came to be known as the Pence Card.
By June 2024, dozens of Republican state officials and Trump associates had been indicted in four states for their alleged involvement. The federal Smith special counsel investigation investigated Trump's role in the events. According to testimony, Trump was aware of the fake electors scheme, and knew that Eastman's plan for Pence to obstruct the certification of electoral votes was a violation of the Electoral Count Act.
Trump's personal attorney, Rudy Giuliani, a "central figure" in the plot, coordinated the scheme across the seven states. In a conference call on January 2, 2021, Trump, Eastman, and Giuliani spoke to some 300 Republican state legislators in an effort to persuade them to convene special legislative sessions to replace legitimate Biden electors with fake Trump electors based on unfounded allegations of election fraud. Trump pressured the Justice Department to falsely announce it had found election fraud, and he attempted to install a new acting attorney general who had drafted a letter falsely asserting such election fraud had been found, in an attempt to persuade the Georgia legislature to convene and reconsider its Biden electoral votes.
Trump and Eastman asked Republican National Committee chair Ronna McDaniel to enlist the committee's assistance in gathering fake "contingent" electors. A senator's chief of staff tried to pass a list of fraudulent electors to Pence minutes before the vice president was to certify the election. The scheme was investigated by the January 6 committee and the Justice Department. The January 6 committee's final report identified lawyer Kenneth Chesebro as the plot's original architect. On October 20, 2023, Chesebro pleaded guilty in the state of Georgia to conspiring to file a false document and was sentenced to five years of probation.
Background
The 2020 US presidential election was held on November 3, 2020. Soon after, Trump began baselessly questioning the legitimacy of the election. On November 7, major news organizations called the election for Biden, and he gave a victory speech that evening. Trump refused to concede and continued to express doubt over the election results.
Trump's refusal to leave office
The fake electors plot was in concert with Trump's refusal to ever leave office and the White House after the end of his term. Maggie Haberman has described how Trump initially recognized he had lost the election, but then expressed he would "never" leave:
Trump seemed to recognize he had lost to Biden. He asked advisers to tell him what had gone wrong. He comforted one adviser, saying, 'We did our best.' Trump told junior press aides, 'I thought we had it,' seemingly almost embarrassed by the outcome, according to Haberman.
Then his attitude seemed to change:
"I'm just not going to leave," Trump told one aide, according to Haberman. "We're never leaving," Trump told another. "How can you leave when you won an election?"... He was even overheard asking the chair of the Republican National Committee, Ronna McDaniel, "Why should I leave if they stole it from me?"
This was confirmed by the testimony of Jenna Ellis in the Georgia election racketeering prosecution. In December 2020, after Trump lost the election, while he was standing in a hallway near the Blue Room of the White House, Dan Scavino told Ellis that Trump would refuse to leave office. Ellis recalled: "And he said to me, you know, in a kind of excited tone, 'Well, we don't care, and we're not going to leave.'" "The boss is not going to leave under any circumstances. We are just going to stay in power."
Plot for state legislatures to choose electors
On November 4, the day after the election, White House Chief of Staff Mark Meadows received a text message calling for an "aggressive strategy" of having the Republican-led legislatures of three uncalled states "just send their own electors to vote and have it go to the [Supreme Court]". The message was reportedly sent by Trump's secretary of energy, Rick Perry.
"We would just be sending in 'fake' electoral votes to Pence so that 'someone' in Congress can make an objection when they start counting votes, and start arguing that the 'fake' votes should be counted," Jack Wilenchik, a Phoenix-based lawyer who helped organize the pro-Trump electors in Arizona, wrote in a December 8, 2020, email to Boris Epshteyn, a strategic adviser for the Trump campaign. In a follow-up email, Mr. Wilenchik wrote that "'alternative' votes is probably a better term than 'fake' votes," adding a smiley face emoji."
On November 5, Roger Stone dictated a message saying that "any legislative body" that has "overwhelming evidence of fraud" can choose their own electors to cast Electoral College votes. That same day, Donald Trump Jr. sent a text message to Meadows outlining paths to subvert the Electoral College process and ensure his father a second term. He wrote, "It's very simple. We have multiple paths. We control them all. We have operational control. Total leverage. Moral high ground. POTUS must start second term now." Trump Jr. continued, "Republicans control 28 states Democrats 22 states. Once again Trump wins", adding, "We either have a vote WE control and WE win OR it gets kicked to Congress 6 January 2021."
On November 6, Congressman Andy Biggs sent a text message to Meadows, asking about efforts to encourage Republican legislators in certain states to send alternate slates of electors, to which Meadows replied, "I love it." Then Arizona House Elections Committee Chair, Kelly Townsend, a longtime ally of Biggs, credited with introducing him to Donald Trump in 2011 when she led the Tea Party, sponsored a bill on January 5, 2021, to designate Arizona's electors to Trump even though the majority of Arizona's votes were for Joe Biden.
Senator Mike Lee and Meadows exchanged a series of text messages referring to Sidney Powell's alleged interest in pursuing a fake electors plot. On November 8, Lee wrote: "Sidney Powell is saying that she needs to get in to see the president, but she's being kept away from him. Apparently she has a strategy to keep things alive and put several states back in play. Can you help her get in?" Two days later, he texted Meadows that he found Powell to be "a straight shooter", though he raised doubts about her to Meadows after her November 19 press conference during which she described elaborate conspiracy theories. Lee sent a text to Meadows on December 8 hypothesizing: "If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path", to which Meadows replied, "I am working on that as of yesterday." Cleta Mitchell, who participated in the Trump–Raffensperger phone call effort to reverse Georgia election results, testified to the January 6 committee that the alternate elector plot was "actually Mike Lee’s idea", telling Mitchell it would be "the sweet spot" to engage senate Republicans. The committee found that Lee later "expressed grave concerns" about the idea to a top Trump legal advisor as January 6 approached.
On November 9, Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, emailed 29 Arizona lawmakers, including assembly speaker Russell Bowers and Shawnna Bolick, encouraging them to pick "a clean slate of Electors" and telling them that the responsibility was "yours and yours alone".
1960 Hawaii electors dispute
In 1960, Hawaii experienced a close presidential race between Richard Nixon and John F. Kennedy, and its electoral outcome was unclear by December 19, 1960, when electors were required to cast their votes, although the national race was already called for Kennedy regardless of Hawaii's results. Both Democratic and Republican elector slates were created, with the governor certifying the Republican electors, as Nixon was currently in the lead pending a recount. Democratic electors would also sign and deliver their own elector certificates and assert a Kennedy victory, using virtually the same language that the false Trump electors would later employ in 2020, with no caveats mentioned for the ongoing recount. After the recount, Hawaii flipped to Kennedy, and the governor certified a new slate of Democratic electors to send to Washington, D.C. On January 6, 1961, then vice president Nixon received all three slates of elector certificates and only certified the second, post-recount Democratic slate. Nixon stated that the event should not be used to establish a precedent. A court case from that incident resulted in a ruling that the ultimately certified Democratic electors were legitimate. A ruling or decision regarding the original, uncertified slate of Democratic electors was never made in Congress or court.
Chesebro and Trump campaign strategist Boris Epshteyn cited the Hawaii election as a precedent to justify their alternate electors plan in 2020, with Chesebro in particular claiming that it demonstrated that alternate slates of electors were permissible and that the deadline for the electoral results was not the December elector vote, but the certification on January 6. Others involved in the plan, particularly in Georgia, would later cite the initial, uncertified Democratic electors from 1960 in an effort to defend themselves from prosecution, saying that similarities in pending legal challenges in the 1960 and 2020 cases provided them with legal cover for their actions. Some differences between the 1960 and 2020 election included the predication of alternate electors on persistent false claims of nationwide election fraud in 2020, instead of an ongoing recount as in 1960. By contrast, alternate Trump electors would continue to meet even after recounts with no changed result. Other differences include the fact that the accepted 1960 Hawaiian Democratic elector slate was certified by the state's Republican governor, while none of the Trump alternate elector slates were endorsed by their respective states' governors, that Hawaii's election held considerably more doubt regarding the eventual victor, and the Trump alternate electors being part of a larger strategy to overturn the election results nationwide, rather than focusing on issues in a particularly close state. Recognizing that the alternate elector certificates might be legally challenged, the alternate Trump electors included contingent language in the elector certificates to avoid charges.
Planning
Working as an outside advisor, attorney Kenneth Chesebro wrote multiple memos to Jim Troupis, a former Wisconsin judge who represented the Trump campaign in Wisconsin. The first memo is dated November 18, the second is dated December 6, and the third is dated December 9, 2020. A fourth memo, addressed to Trump lawyer Rudy Giuliani, is dated December 13, 2020. The memos outlined a plan to maintain Trump's position as president after his first term expired on January 20, 2021.
Focused on challenging the Wisconsin vote, Chesebro argued in the November 18 memo that "the Presidential election timetable affords ample time for judicial proceedings." He asserted that January 6 was the only deadline that mattered for settling a dispute over a state's legal slate of electoral votes. Citing the 1960 United States presidential election in Hawaii as an example of a competing slate of electors, Chesebro suggested that the Trump campaign should submit their own electoral certificates in Wisconsin on December 14 in preparation for the scenario that a court decision, or a "state legislative determination", is made in their favor.
The December 6 memo expanded Chesebro's scope beyond Wisconsin into a national strategy. The strategy was to have Trump–Pence electors in six allegedly contested states submit their own "alternate" slates of purported electoral certificates in anticipation that Vice President Mike Pence would claim unilateral authority to count the votes in his role as President of the Senate. Chesebro stated that he believed the strategy was "constitutionally defensible" but acknowledged that the Supreme Court might rule against it and said he was "not necessarily advising" it. The memo was nevertheless written with a sense of urgency to act, its title being "Important That All Trump-Pence Electors Vote on December 14." Chesebro concluded the memo in stating that it "seems advisable for the campaign to seriously consider" his suggested course of action. Chesebro believed that his plan would focus the public's attention on alleged "electoral abuses by the Democrats" and to "buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump's column".
The December 9 memo largely focused on providing a "general overview" of the legal requirements regarding the submission of electoral votes, under both federal law and the respective laws of the six states "in controversy". Chesebro additionally commented that, in spite of having no involvement from "the governor[s] or any other state official[s]", the Trump campaign's purported "alternate" electoral votes "might be eligible" for counting on January 6 if by then they were recognized "by a court, the state legislature, or Congress".