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Prosecutors: No evidence of intent by N.M.’s fake electors

Sean Sullivan, a prosecutor with the New Mexico Department of Justice, led the two-year investigation into New Mexico’s fake elector scheme. He presented his findings to the Senate Judiciary Committee on Jan. 17. (Austin Fisher/Source NM
Attorney general explains why five people who submitted false Electoral College votes won’t be prosecuted

At noon on Dec. 14, 2020, New Mexico’s five presidential electors met in a committee room on the third floor of the New Mexico State Capitol in Santa Fe to cast the Electoral College votes for Joe Biden, who won the state by more than 100,000 votes.

At the same time, the five Republican elector nominees met downstairs in the east lobby at the Roundhouse to hold their own “mirror image” meeting to cast their electoral votes for Donald Trump.

Details about the meeting were presented to lawmakers on Wednesday. Sean Sullivan, a New Mexico Department of Justice prosecutor who was later assigned to investigate, said four of the original fake electors attended the meeting: Jewll Powdrell, Deborah W. Maestas, Lupe Garcia, and Rosie Tripp.

Harvey Yates was originally nominated as a fifth GOP elector, but he wasn’t in the state at the time, so the rest of the group instead nominated Anissa Ford-Tinnin, who was the New Mexico Republican Party’s executive director, Sullivan said.

Also present at the meeting were incoming state GOP executive director Nike Kern (who recorded the meeting on video with her phone) and her husband John Kern. That video, Sullivan said, demonstrates the fake electors were “rather unprepared and unfamiliar with the process.”

Powdrell chaired the meeting, and could be seen frequently looking off-camera and taking cues from John Kern, who “had nothing to do with this, he happened to be a lawyer and adept at paperwork,” Sullivan said.

Legitimate presidential electors certify who their votes for president and vice president are going to be by signing what is called a certificate of votes, Sullivan said.

The fake electors signed a certificate of votes saying they were only certifying the electoral votes if they were determined later to be the valid electors for those states, he said.

“We the undersigned, on the understanding that it might later be determined that we are duly elected and qualified electors,” the document begins. Kern and her husband later sent it to the National Archives and former Vice President Mike Pence in his capacity in the U.S. Senate, Sullivan said.

“No one there had a very clear sense of what it is they were supposed to be doing, and why it is they were supposed to be doing it,” Sullivan said.

What the Republican electors also didn’t know, Sullivan said, was that in Pennsylvania, GOP electors and their state party chairman felt uncomfortable about signing something holding themselves out as the legitimate electors, when in fact Trump lost the popular vote in that state, too.

According to Sullivan’s summary of his investigation presented to state lawmakers:

To alleviate those concerns, Pennsylvania’s Republican elector nominees on Dec. 12, 2020 spoke with Trump lawyers Kenneth Chesebro and Rudy Giuliani, who falsely assured them the certificates would only be used if the campaign won their lawsuit to overturn the results.

Despite those assurances, Chesebro wrote an email later that night to other attorneys in the Trump campaign suggesting they should use conditional language in their document.

“It strikes me that if inserting these few words is a good idea for (Pennsylvania), it might be worth suggesting to electors in other states,” Chesebro wrote. Four or five hours later, he sent another email to Trump campaign lawyers Mike Roman and Joshua Finley providing them with the documents that would be used by New Mexico’s fake electors, without any edits.

Roman forwarded those documents to Thomas Lane, who was the Trump campaign’s executive election day operation director for New Mexico. Lane then forwarded them on to New Mexico’s fake electors at 3:40 p.m. on Dec. 13, 2020.

“New Mexico’s fake electors had no knowledge of the Pennsylvania developments,” Sullivan said. “They were simply presented with a draft certificate that had already had those changes made.”

Last chance before presidential election

This gap in knowledge is crucial to the New Mexico Department of Justice’s decision not to charge anyone involved in the 2020 fake presidential elector scheme, and now New Mexico’s top prosecutor is asking the state’s legislature to change election law in order to prevent it from happening again.

First, Attorney General Raúl Torrez wants lawmakers to amend the crime of falsifying election documents to prohibit someone from knowingly falsifying an election document without the additional requirement of an intent to deceive or mislead, and to include a wider range of election documents explicitly protected by the law.

Second, he wants legislators to create a new crime of falsely acting as a presidential elector like the one passed by the Nevada Legislature but vetoed by its governor, and explicitly prohibit anyone from escaping criminal liability by using conditional language similar to what was used by New Mexico’s fake electors.

Sullivan, Torrez and New Mexico Secretary of State Maggie Toulouse Oliver presented the new information during a Senate Judiciary Committee meeting on Wednesday.

Sen. Joseph Cervantes (D-Las Cruces), who heads the committee, said this session is the last time lawmakers will have an opportunity to make any changes to state law before the next presidential election in November.

New Mexico Secretary of State Maggie Toulouse. (Morgan Lee/The Associated Press)

Cervantes said he wants Gov. Michelle Lujan Grisham to put the legislation on the call so that lawmakers can consider it in the short session. Torrez said he has identified “a potential sponsor” in the House of Representatives, but did not name them.

‘These individuals cannot be charged with the crime’

The New Mexico Department of Justice looked at the state’s criminal and election laws to figure whether the fake electors, the state Republican Party, or members of Trump’s team and campaign committed a crime when they drafted, signed and sent the false certificate of votes.

Nothing in the state’s election laws apply to their conduct, according to the department’s final report on its investigation of New Mexico’s false electoral votes in the 2020 presidential election.

The crime of forgery is what “most closely aligns with the conduct of the fake electors,” according to state officials. Authorities in Georgia, Michigan and Nevada charged their fake electors with that crime.

But after two years of investigation, the New Mexico Department of Justice found the fake electors’ actions only met two of the three elements needed to prove forgery beyond a reasonable doubt.

Forgery in New Mexico must include: (1) falsely making or altering a signature on, or any part of, a written document, (2) the document claims to be legally valid and (3) the person acted with the intent to injure or defraud.

New Mexico’s fake electors met the first two elements but not the third.

The fake electors received and signed a document with language indicating they were not, at the time, New Mexico’s legitimate presidential electors.

Two days earlier on Dec. 12, 2020 at 9:39 p.m., Ford-Tinnin texted with Lane to discuss an impending lawsuit the campaign would file in New Mexico challenging what they perceived to be voting irregularities, Sullivan said.

According to the final report, the fake electors knew the lawsuit would be filed soon after they signed the certificate of votes, and Lane told Ford-Tinnin the certificate would only be used if they won.

“The totality of the evidence does not establish that the fake electors intended to deceive the President of the Senate into thinking that they were the actual electors from New Mexico and using their votes in place of New Mexico’s actual electors without a court ruling overturning the election results,” the department wrote. “Because proof of an essential element of forgery is missing, these individuals cannot be charged with the crime.”

In interviews with state prosecutors, the fake electors said they participated in the scheme to submit placeholder or contingent votes to be counted only if the election results were lawfully changed as a result of Trump’s lawsuit, Sullivan said.

Ford-Tinnin said the electoral votes “weren’t worth the paper they were written on,” because to her knowledge they hadn’t been filed anywhere, Sullivan said investigators found.

Kern described the certificate they signed as an “insurance policy,” he said. Maestas, Tripp, Powdrell and Garcia believed the certificate would only be operative if the lawsuit succeeded, he said.

New Mexico Republican Party chairman Steve Pearce told investigators the electoral votes served a preservation purpose, and they needed to vote on a specific day so if they were successful later on, they had the votes in place, Sullivan said.

“Those statements were corroborated by other documents that we reviewed that took place close in time or contemporaneously with when they were voting,” Sullivan said. “We’re not just taking folks’ word at face value.”

While there was a scheme at the national level to overturn the 2020 election results, New Mexico Department of Justice investigators wrote, it did not extend to New Mexico because the certificate signed by the fake electors contained the conditional language about Trump’s lawsuit.

By contrast, in five other states, Trump’s team and campaign sent draft certificates of votes to Republican Party executives which declared the fake electors to be the legitimate ones.

If a document like that had been sent to New Mexico GOP party executives or the fake electors, the people responsible “may have been guilty of solicitation of forgery under New Mexico law” because they would have been asking the fake electors to submit a false certificate with fraudulent intent, New Mexico Department of Justice investigators wrote.