This post originally appeared at https://www.wisconsinrightnow.com/wisconsin-fake-electors/

Here are 11 facts that exonerate the so-called Wisconsin “fake electors.”

After Jack Smith’s flawed, second indictment against former President Donald Trump, the Wisconsin news media lurched into overdrive in an attempt to smear the so-called Wisconsin “fake electors,” repeatedly asking Democratic state Attorney General Josh Kaul whether he will prosecute them.

However, the new Trump indictment would make a Kaul prosecution exceptionally difficult. There are a number of mitigating facts about Wisconsin’s alternate electors that you might not have heard. Furthermore, there are key differences between the criminally charged “fake electors” in Michigan and those in Wisconsin. Instead of carefully presenting these facts, some in the media are running “bios” of the so-called fake electors; one even gratuitously and irrelevantly mentioned who had kids.

Look, we don’t think President Trump won the 2020 election, and we wish he would have stopped talking about the 2020 election a long time ago and shifted the narrative to the future. We don’t think the “fake elector” schemes were a good idea, or should have occurred, although that’s a far cry from whether they were criminal.

However, when it comes to Wisconsin’s slate of “alternate electors” (to use a warring term), the facts known now point away from criminal wrongdoing.

In Wisconsin, Kaul previously said he wanted to see how federal prosecutors proceeded before making a decision and, after the 3rd indictment, he said he’s reviewing it “carefully.”

Here are the 11 facts you may not know:

1. The evidence shows Wisconsin’s electors believed their votes would only be used if Trump prevailed in court

Former Wisconsin GOP chair Andrew Hitt, one of the alternate electors, gave a detailed deposition before the House Committee investigating Jan. 6. In it, he repeatedly states that he and others thought the alternate electors would only be used if Trump prevailed in court.

This is an extremely important point. Far from a plot to subvert the system, the Wisconsin alternate electors were waiting to see what the system did, and whether it would side with Trump.

In that deposition, Hitt made it clear that he didn’t think the alternate electors would have any force of law if the courts did not side with Trump. Hitt repeatedly testified that he was not aware of any plan to present the alternate electors as valid absent a court victory.

The indictment cites a November 18 memo by a Wisconsin-focused attorney (and alleged “co-conspirator” of Trump) that the electors should meet and cast votes on December 14 to present an alternative to the Wisconsin elector slate “in the event the Defendant ultimately prevailed in the state.” (Our emphasis).

The indictment says this switched to a plan at the national level to have the vice president open and count the “fraudulent votes” on Jan. 6 to set up a fake controversy and derail the proper certification.

However, Hitt’s testimony indicates that the Wisconsin electors (and the Republican National Committee chairwoman) weren’t aware of that alleged scheme.

“I was told that these would only count if a court ruled in our favor,” Hitt testified. “So that would have been using our electors – well it would have been using our electors in ways that we weren’t told about and wouldn’t have supported.” In fact, he said that he did not want the alternate electors used on the basis of Trump’s fraud allegations alone, but only if a court agreed with Trump.

“Did anyone ever tell you that your alternate — this alternate slate of Republican Party electors could be counted on January 6th even if the litigation did not overturn the, you know, certified results of the vote in Wisconsin?” he was asked.

Hitt responded, “No.” And he added, “I even said it at our electors meeting.”

2. The indictment says some so-called fake electors were “tricked” by the Trump campaign

This is probably the KEY point. According to the indictment, some of the alternate electors in the seven targeted states were tricked. The RNC chair was also misled, the indictment says.

“Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the defendant succeeded in outcome-determinative lawsuits within their state, which the defendant never did,” the indictment says. Our emphasis. Although the indictment doesn’t specify which state’s electors were “tricked,” Hitt’s testimony indicates Wisconsin’s were among them.

Trump and his alleged co-conspirators “ultimately used the certificates of these fraudulent electors to deceitfully target the government function, and did so contrary to how fraudulent electors were told they would be used,” the indictment says. Our emphasis. The co-conspirators are NOT the Wisconsin alternate electors, per the indictment. They are five attorneys operating on a national level (including Rudy Giuliani and a lawyer based in another state working closely with Wisconsin) and an unidentified political consultant.

An alleged co-conspirator told the RNC chairwoman falsely that “such electors would be used only if ongoing litigation in one of the states changed the results in the Defendant’s favor,” the indictment says.

The indictment alleges that Trump and “co-conspirators” developed a plan in early December 2020 to marshal individuals who would have served as his electors and cause those individuals to send to the Vice president and Congress “false certifications that they were legitimate electors.”

The memo “did not reveal the intended fraudulent use of the defendant’s electors,” it’s alleged.

3. There was pending litigation in Wisconsin at the time & it was not frivolous but rather based on serious legal issues

That wasn’t true in all other states, but in Wisconsin it was; at the time the alternate electors in Wisconsin met, they still thought Trump had valid legal arguments relating to the election.

These were not crazy or frivolous arguments. For example, as the indictment pointed out, Trump was raising questions about absentee ballots. On the same day the electors met, on December 14, 2020, the Wisconsin Supreme Court ruled against Trump. However, he appealed, and that was pending.

The U.S. Supreme Court refused to hear “former President Donald Trump’s lawsuit challenging the 2020 presidential election results in Wisconsin,” WBAY-TV reported in March 2021.

That was months after Wisconsin’s alternate electors met.

In his deposition, Hitt repeatedly stressed that there was pending litigation.

Specifically, Trump’s campaign was appealing a 4-3 Wisconsin Supreme Court decision to the U.S. Supreme Court. Republican officials like Hitt believed Trump had a chance of prevailing because the deciding vote, Brian Hagedorn, used a rare legal argument, the vote was so close, and the U.S. Supreme Court was conservative-controlled.

In other words, at the time the electors met, the president was still following the legal process, which was his very right, and there was a chance he could prevail.

As with indefinitely confined voters and Democracy in the Park, legal concerns were not prima facie ridiculous in Wisconsin. They were serious legal arguments.

“There’s two groups of cases going on. There is some Federal election — or Federal cases going on that didn’t seem like they were going to be very successful,” Hitt said in his testimony.

“And then we had our Wisconsin recount and Wisconsin Supreme Court case. That seemed, you know, potentially that it very much could change things. It was a 4-3 decision and being appealed to what I would say a much more conservative United States Supreme Court case — or United States Supreme Court. So, you know — and — and it was very clear that the elections commission really didn’t — they didn’t follow the letter of the law, you know, in a number of things that they did.” (In fact, the Racine County Sheriff later referred criminal charges against some commissioners, although DAs declined to pursue them.)

State GOP Executive Director Mark Jefferson said in a statement after the indictment, “as the Wisconsin electors have consistently said, all action taken to produce an alternate slate was only done to preserve an ongoing legal strategy and only to be used in the event a court of law gave the alternate slate meaning. We were not informed of any use of the alternate electors contrary to preserving the legal strategy and would not have approved any other use. Yesterday’s Trump indictment does not allege that the Wisconsin electors took any steps whatsoever to knowingly join a conspiracy.”

4. Wisconsin alternate electors were operating on the advice of attorneys

We’ve reviewed the names of the Wisconsin alternate electors who the media are listing ad infinitum in stories post-indictment. We know who some of them are. Although some, like Hitt, are more legally sophisticated, others are elderly party volunteers who aren’t lawyers.

Hitt testified that the alternate electors and the state GOP were relying on the advice of lawyers, who said that, if the alternate electors did not meet and Trump prevailed in court, there would be nothing they could do. They met to preserve his ability to prevail if the courts agreed, Hitt testified.

Hitt testified that he was told by an RPW lawyer that “the only way these electors would really count is if a court said so. And then, ultimately, also, the Governor would have to send a certificate of, I think, it’s called a certificate of final determination that would also indicate that these were the electors to be utilized.”

And obviously the lower-level electors would likely follow the heed of Hitt, the state RPW chair.

Hitt said he was told that “if we didn’t meet, that it was completely waived. And what I mean by that is, if we — if we didn’t meet and a court subsequently ruled that these challenges in Wisconsin were successful, the guidance I was given is it would be irrelevant because the elector meeting had not taken place.”

“Do you recall a theory that was reportedly advocated by individuals associated with the Trump campaign where Vice President Pence, as the President of the Senate, if presented with dueling slates of electors, could pick which slate of electors to count on January 6th during the joint session?” Hitt was asked.

He responded, “I never talked to anybody about that, that I recall. And it certainly would have directly conflicted with what our legal counsel was telling us. He had indicated that basically these — what we’re doing — the documents are meaningless unless a court would rule in their favor and the Governor would send that certificate.”

5. An alternate elector from a regional committee was operating at the direction of the state GOP and also testified she believed they were voting in case the courts sided with Trump

If GOP leadership was listening to its lawyers, alternate electors were following the direction of GOP leadership.

One of the alternate electors, Kelly Ruh, testified to the House Committee on Jan. 6 that she learned her vote would be needed by text message “that was putting me on notice that I may still need to attend the meeting on December 14^th in the event that Donald Trump would be declared the winner of Wisconsin after going through various court processes.”

Ruh was 8th Congressional District GOP chair.

A text message to her from Jefferson was produced that said, “Given all of the court cases pending we were advised to reach out to the electors over that possibility.”

Ruh said she did not recall whether she had any understanding at that time as to whether Trump or Joe Biden had been certified as the winners of the State of Wisconsin.

She sent a text message to another person, though, that said, “I’m being sent to do the electoral vote. What a waste of a day off. I’m so pissed.”

Asked to explain, she said, “I was – you know, for a long time, obviously had planned to potentially be in Madison on the 14^th, and then, after Biden had won the State, was not planning to do that. It was a very stressful season at work … and so, with, you know, many court cases and things being contested after the election, after election day, it was looking like, yes, we would be signing these papers as a backup, you know, on the remote chance that Donald Trump would be declared the winner in Wisconsin.” Our emphasis.

She added that she was not expecting Trump to prevail in the courts so she was upset about having to use a personal day off. She explained, “When you get into arguing these things in the courts, my experience, whether it was business or otherwise, family court, whatever, is that you just don’t – you hope you don’t have to go there.”

But she didn’t say there was no chance. She clearly believed the votes were needed IN CASE Trump prevailed in court.

She said she wasn’t aware of much else, including the Pence approach or the memos. In other words, she seemed to be getting her information from the news or party officials.

She also testified that she did not believe her electoral vote would be counted.

Ruh asked Jefferson on Dec. 13, “Do you really think there’s going to be a favorable ruling?” and he responded with a thumb’s down emoji. She was asked “why do this anyway” if there was a low likelihood Trump would prevail and she said, “To preserve the right of the electoral votes if the courts would’ve overturned the decision and declared Trump the winner. That’s it. It’s that simple.” Our emphasis.

6. The state Legislature didn’t get involved

Ruh testified that she believed there was never any legal significance to the electoral college vote she signed because no court or State Legislature ever ratified or adopted them. Although the vote took place at the Capitol, it was a function of RPW.

7. There was a precedent out of Hawaii

Hitt testified about a Hawaii precedent that some of the alternate electors were aware of.  The Wisconsin State Journal reported that this was when “Hawaii electors from both parties convened in public regarding a genuine dispute over the 1960 presidential election.”

“Of course, there is precedent for such a meeting. Democrats convened in Hawaii in 1960,” Hitt testified.

Of course, that wording – “genuine dispute” – seems to unfairly imply that legal theories in Wisconsin were not a “genuine dispute.” They were. We weren’t talking about secret algorithms programming voting machines here; the legal questions were legitimate.

8. The indictment doesn’t charge the alternate electors or list them as co-conspirators

The indictment charges only Trump and lists six people as alleged co-conspirators. Again, they have been identified as five out-of-state attorneys (including one, Ken Chesebro, who worked closely with Wisconsin but was not an alternate elector), and one unidentified political consultant. None is a Wisconsin alternate elector.

Nowhere does the indictment paint the Wisconsin alternate electors as controlling the process or criminally liable. Rather, it paints the alternate electors throughout the country as tricked and misled.

9. The State Republican Party told the public what it was doing

The Wisconsin Republican Party was very open about the alternate electors, releasing a statement that emphasized the legal angle on the date they voted.

In a Dec. 14, 2020, statement on the Wisconsin GOP website, Hitt said:

“While President Trump’s campaign continues to pursue legal options for Wisconsin, Republican electors met today in accordance with statutory guidelines to preserve our role in the electoral process with the final outcome still pending in the courts.” Our emphasis.

“I did not want anyone to think that we were saying we were the proper or the only proper slate of electors,” Hitt testified of the statement. “So I didn’t — I didn’t want to make a big deal out of this. This was a contingency plan in case the — you know, the court ruled in the Trump campaign’s favor.”

10. The alternate electors’ votes weren’t legal anyway

The votes weren’t legal under federal law, an attorney is quoted in the indictment as saying, absent a governor’s signature.

11. The state GOP’s leadership raised serious questions about some election claims

The state GOP chair (Hitt) and executive director (Mark Jefferson) expressed concerns about Wisconsin voter fraud arguments being made by Trump’s national team repeatedly, the deposition shows.

It appears they were very skeptical of the crazier claims and were focusing on the strict, reasonable legal cases in Wisconsin instead (cases where several justices sided with Trump).

At one point Jefferson asked Hitt, “Now, how are we gonna get this silly electors meeting canceled? I fear that we won’t.”

In fact, Hitt testified that the RPW left out some contact information for Wisconsin’s slate because they didn’t want the Trump campaign to be able to contact them. “I was concerned that they were going to try to push us to say we were the only proper electors. And I didn’t want them doing that to our individual electors across the State,” he said, adding, “These are just volunteers who felt like they’re doing a public service.”

A brief timeline, per the indictment. On Nov. 29, 2020, the Wisconsin recount ended, without changing the result. On Dec. 14, the alternate electors met. On Dec. 21, the governor signed a certificate of final determination.

The alternate electors are Hitt; Wisconsin Election Commissioner Robert Spindell; Mary Buestrin, a vice chair for the Republican National Committee; 8th Congressional District GOP chair Kelly Ruh; 1st Congressional District GOP vice chair Carol Brunner; former Dane County Republican Party chair Scott Grabins; La Crosse County Republican Party chair Bill Feehan; 5th Congressional District GOP chair Kathy Kiernan; 6th Congressional District GOP chair Darryl Carlson; and 1st Congressional District GOP vice chair Pam Travis.