Michigan Attorney General Dana Nessel this week announced criminal charges against 16 Republicans who presented themselves as the state's electors after the 2020 presidential election. Brookings Institution Senior Fellow Norman Eisen and New York University law professor Ryan Goodman responded with a New York Times essay headlined "Trump's Conspirators Are Facing the Music, Finally." As Eisen and Goodman see it, the Michigan defendants participated in a criminal conspiracy to overturn Joe Biden's victory by posing as the state's true electors.
The defendants, of course, do not accept that narrative. As they see it, their conduct was a legitimate way of preserving objections to a contested election, grounded in historical precedent and the advice they received from Donald Trump's lawyers. The "contingent" Trump electors in Georgia, who have been informed that they are targets of a similar investigation by Fulton County District Attorney Fani Willis, make the same basic argument. Press coverage of these investigations, which routinely describes the targets as "fake" or "bogus" electors, tends to dismiss that argument out of hand. But it is worth a closer look, because it is central to the question of whether prosecutors can prove that would-be electors who followed the Trump campaign's advice acted with criminal intent.
