By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizona Attorney General Kris Mayes will again have to convince grand jurors to indict 11 fake electors and others she contends were part of a scheme to overturn the 2020 presidential race.

If she cannot, the charges against the defendants will be dropped.

In a new ruling, Maricopa County Superior Court Judge Sam Myers said the grand jurors who handed up the first indictment last year were not given access to the Electoral Count Act of 1887. Nor, he said, was the federal law explained to them before they concluded there was probable cause to indict them.

What makes that significant is that Stephen Binhak, the attorney for one of those indicted, said federal law “specifically addresses the possibility of competing presidential elector ballots from a single state and exactly how the Congress must handle them.”

That goes directly to the claim by Tyler Bower, his client, as well as all of the others who argue they were not intending to commit fraud or conspiracy by preparing and signing documents showing they were the legitimate electors — all pledged to Republican Donald Trump — despite the fact the official tally showed that Democrat Joe Biden won the state by 10,457 votes and was legally entitled to the state’s 11 electoral votes.

It is impossible to know at this point whether providing that information to the grand jurors would have made any difference in their decision to indict the electors and others involved in the plan. But Myers said the jurors were entitled to that information. And since they did not get it, the indictment is flawed.

Mayes intends to fight the ruling.

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

But if that appeal fails, Mayes starts from scratch, this time with a new 16-member grand jury as the original panel has been dissolved. And if that new grand jury decides there’s not enough evidence to show an intent to break the law it will decline to issue a new indictment and the charges go away.

Myers said sending the case to a new grand jury is what has to happen given the information not provided the first time around.

“The Electoral Count Act was central to defendant’s claims that they were acting lawfully and without an intent to defraud,” the judge wrote. That includes their theory that Biden actually 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 that Trump 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 the 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 prosecutors erred, he said, was failing to give the grand jurors the actual texts of the law before they returned indictments charges 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. And 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. And he said that is true even if jurors do not make any specific request for additional legal instruction.

“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.

All of this is likely to mean there is little chance the trial will begin as scheduled on Jan. 5 — assuming the grand jury, even after being presented with the new information, chooses to indict the defendants again.

The indictment charges 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 most visible part of that plot, at least in Arizona, was 11 Republicans signing a document claiming Trump won the popular vote here and that they represented the state’s 11 electoral votes to be cast for him. That list includes two then-current state senators — Jake Hoffman of Queen Creek, who is still in the Legislature, and Anthony Kern of Glendale who is not but is now seeking reelection — as well as Kelli Ward, who at the time was the chair of the Arizona Republican Party, and her husband Michael.

The defendants have said they did nothing wrong and simply prepared the documents in case litigation would show 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 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.

At the heart of the new ruling is the claim by defendants there was no intent by those indicted to actually break the law. That’s where the 1887 law comes in.

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

“Moreover, 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.

Then there’s the fact, he said, grand jurors were never told Kenneth Cheseboro, a Harvard Law educated practitioner, had explained to prosecutors there was a legal basis for an “alternate elector” approach. All that was occurring while there 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 grand jurors were presented with “relevant information,” including a letter from an attorney for Hoffman that plained many legal theories and history that Hoffman’s lawyer argued exempts the defendants from legal liability.