Arizona ‘fake electors’ use anti-SLAPP defense, claim First Amendment privilege

PHOENIX (CN) — Donald Trump allies including Rudy Giuliani and Arizona Republican leaders argued Monday that an indictment accusing them of conspiracy to overturn the 2020 presidential election should be dismissed under Arizona’s newly amended anti-SLAPP statute, barring prosecutions intended to inhibit free exercise of First Amendment rights.

Fourteen of the 16 remaining defendants in Arizona’s “fake electors” case told a Maricopa County judge that the signing and certification of a document assigning Arizona’s 11 electoral votes to Donald Trump rather than President Joe Biden in 2020 was an expression of the defendants’ First Amendment freedoms to petition the government.

“There’s a difference between a group of people committing fraud and a group of people expressing an unpopular political belief,” Michael Columbo, attorney for Republican state Senator Jake Hoffman, told Maricopa Superior Court Judge Bruce Cohen Monday afternoon.

In 2022, the state Legislature amended Arizona’s anti-strategic laws against public participation statute — or anti-SLAPP, a concept typically reserved as a response to civil actions seeking to silence free speech — to include criminal prosecutions.

Now, those implicated in an apparent conspiracy to overturn the presidential election by signing false documents and pressuring Congress and then-Vice President Mike Pence to accept the results over the duly certified Democratic electors are attempting to use it to dismiss the nine counts of conspiracy, forgery and fraud they each face.

In arguing other motions to dismiss, the defendants told the judge that none of the independent acts listed in their indictment — like filing action in the Supreme Court to challenge the electoral outcome, or writing to Congress or the vice president to urge them to declare Trump the winner or remand the decision to the state legislature — is a crime of its own nature, and the case should therefore be dismissed.

But prosecutors argued that the defendants’ actions must be taken in a broader context.

“It’s not just taking a concern to court,” prosecutor Krista Wood said. “It is part of a larger scheme to overturn the election.”

But Columbo and other defense attorneys countered that the state has provided no evidence that there was an agreement between the electors and other accused conspirators to violate the law, nor is there any evidence of what the electors were told at all.

State prosecutor Nick Klingerman said the statute, amended two years after the actions in question, may now constitute an ex-post-facto law — unconstitutionally retroactively adjusting the original standards — or may otherwise violate the federal rules of criminal procedure.

To satisfy an anti-SLAPP motion, the defendants must independently convince the judge that the legal action involved a First Amendment right and that the action was intended to quash that right. Only if the defense meets that burden will the state be asked to prove why the action is based on law and not retaliation.

Earlier in the proceeding, defense attorneys argued in a separate motion that the indictment should be dismissed because the state hasn’t produced any evidence that the electors submitted the certification with the intent to upend the election.

Dennis Wilenchik, representing Republican elector and former U.S. Senate candidate James Lamon, said his client intended his vote and signature as a contingency plan in the event that a court would reverse the election results in Donald Trump’s favor.

“The context was completely ignored by the state,” Wilenchik said. “You cannot take this in a vacuum.”

Willenchik said it was clear to every elector and the rest of the defendants that the votes were intended to be submitted only as a contingency plan, and that it was never intended to deceive anyone.

“Do you really think now-Governor Hobbs was fooled by this alternate slate?” he asked Cohen. “I don’t think so.”

Klingerman countered that nowhere on the document signed by Lamon did it say that it was contingent on anything, and public statements made by other electors, including those Lamon is said to have relied on for information, imply that the intent was always to certify Trump as the winner, regardless of any pending litigation.

Two defendants have already dropped out of the case, which is expected to head to trial no earlier than January 2026 and span at least eight weeks with some 80 witnesses.

Trump attorney Jenna Ellis agreed to cooperate with the prosecution on Aug. 5 in exchange for the state dropping the counts against her. Lorraine Pellegrino, Republican elector and former secretary for the Arizona Trump Electors, pleaded guilty the following day and received three years probation.

The defense is scheduled to conclude its arguments Tuesday. If Cohen finds they’ve met their burden, he will hold an evidentiary hearing in November for the state to rebut.

This article was first published by Courthouse News Service and is republished under their terms of use.