Judge sends Arizona's fake electors case back to grand jury

PHOENIX — Attorney General Kris Mayes will have to once again convince grand jurors to indict 11 fake electors and others she says were part of a scheme to overturn Arizona’s 2020 presidential election.

If she can’t, the case won’t move forward.

In a new ruling, Maricopa County Superior Court Judge Sam Myers said the indictments must be sent back to the grand jury for reconsideration.

He said grand jurors were not given access to the Electoral Count Act of 1887 and did not have the federal law explained to them before they found probable cause to indict the fake electors.

The federal law cited by the judge “specifically addresses the possibility of competing presidential elector ballots from a single state and exactly how the Congress must handle them,” said Stephen Binhak, attorney for Tyler Bower, one of those indicted.

The defendants claim they were not intending to commit fraud or conspiracy by preparing and signing documents showing that they were the legitimate electors — all pledged to Republican Donald Trump — despite the fact that the official tally showed Democrat Joe Biden won the state by 10,457 votes and was legally entitled to the state’s 11 electoral votes.

Myers said the grand jurors were entitled to information they didn’t receive.

“The Electoral Count Act was central to defendants’ claims that they were acting lawfully and without an intent to defraud,’’ the judge wrote. That includes their theory that Biden did not win Arizona — there was a pending lawsuit — and that they simply prepared and sent the alternate slate of electors to Washington to be ready if a court later concluded Trump had won.

Myers said attorneys for the state confirmed they were aware, while the grand jury was deliberating, that at least some of the defendants claimed their actions were authorized by federal law.

The judge said that law was discussed during the presentation of the case to the grand jury, and the jury did ask a witness for the state about the requirements of the law.

But where the prosecutors erred, he said, was failing to give the grand jurors the actual texts of the law before they returned indictments charging all with conspiracy, forgery, and conducting fraudulent schemes and practices in connection with the 2020 election.

“A prosecutor has a duty to instruct the grand jury on all the law applicable to the facts of the case,’’ Myers wrote. He said that includes instructing the jurors on “justification defenses’’ that, based on the evidence provided, are relevant to the jurors determining whether there is probable cause to believe they have committed a crime.

“Due process compels the prosecutor to make a fair and impartial presentation to the grand jury,’’ Myers said. That is true even if the jurors do not make any specific request for additional legal instruction, he said.

“Because the state failed to provide the Electoral Count Act to the grand jury, the court finds that the defendants were denied a substantial procedural right as guaranteed by Arizona law,’’ the judge wrote.

Mayes intends to fight the ruling.

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“We vehemently disagree with the court,’’ said her press aide Richie Taylor. “And we are planning to file a special action to appeal the ruling.’’

At the very least, that appeal delays sending the case back to the grand jury.

The trial was scheduled to start on Jan. 5.

The indictment charged 18 people with being part of a scheme to “prevent the lawful transfer of the presidency of the United States, keeping President Donald J. Trump in office against the will of Arizona voters, and depriving Arizona voters of their right to vote and have their votes counted.’’

The plot included 11 Republicans signing a document claiming that Trump had won the popular vote here and that they represented the state’s 11 electoral votes to be cast for him. Among the 11 were then-state Sens. Jake Hoffman and Anthony Kern, as well as Kelli Ward, who at the time was the chair of the Arizona Republican Party.

The defendants have said they simply prepared the documents in case litigation would show that Trump actually won. But the indictment says the actions here — and similar ones in other states — were part of a larger plan to deny Biden the necessary 270 electoral votes he needed, throwing the decision on the race to Congress.

Charges also were brought in Arizona against others in the Trump orbit, including former White House chief of staff Mark Meadows and several of Trump’s attorneys, including John Eastman, Christian Bobb and Rudy Giuliani. Another Trump attorney, Jenna Ellis, is having the charges against her dismissed after she agreed to cooperate with prosecutors.

Trump himself was listed as an unindicted co-conspirator.

Binhak said the 1877 law at issue is a direct result of Congress receiving competitive presidential elector ballots from some states in 1872 and 1876. That led Congress to adopt the Electoral Count Act, which details how they alone count the electoral votes.

“The Electoral Count Act specifically addresses the possibility of competing presidential electors from a single state and exactly how the Congress must handle them,’’ Binhak told Myers.

He also said grand jurors were never told that Kenneth Cheseboro, a Harvard Law-educated practitioner, had explained to prosecutors that there was a legal basis for an “alternate elector’’ approach. That was occurring while there was was litigation pending challenging the results of the Arizona vote.

For their part, attorneys for the state said they did nothing wrong.

Assistant Attorney General Nicholas Klingerman said the grand jurors were presented with “relevant information,’’ including a letter from an attorney for Hoffman that explained many of the legal theories and history that Hoffman’s lawyer argued exempt the defendants from legal liability.