Why Arizona Attorney General Mayes didn't want to indict Trump in fake elector case
An Arizona grand jury expressed "interest" in charging former President Donald Trump and other Republican state lawmakers as part of its investigation of efforts to overturn the 2020 election result, new court filings reveal.
But it was Democratic Arizona Attorney General Kris Mayes' office that "requested" the jurors not indict the former president or those lawmakers, the document says.
Ultimately the grand jury charged 18 people — not Trump — in April with nine felonies alleging they attempted to thwart the will of Arizona voters who narrowly elected President Joe Biden nearly four years ago.
Those defendants include 11 Republicans who falsely claimed on documents sent to Congress that Trump won, and seven aides to the former president who were allegedly involved in the plot in states to create bogus slates of electors.
Politics: Indicted Trump attorney Jenna Ellis to help Arizona prosecutors in fake electors case
The latest court filing, the state's response to several defendants' motions to dismiss the high-profile criminal case, reveals for the first time inner workings of the grand jury and provides insight as to the approach of the Attorney General's Office.
Of four states that have filed criminal charges related to the scheme, Arizona's is among the broadest in that it yielded charges against Trump allies.
At least seven of the defendants have filed motions to dismiss the case under an Arizona law that allows for quick dismissals if a defendant can prove the case was substantially motivated by retaliation because they exercised a constitutional right, like freedom of speech.
The response filed by Mayes' office reveals that jurors heard 18 days of testimony before reaching their decision on whom to charge. The filing signed by Criminal Division Chief Nick Klingerman says that prosecutors repeatedly told grand jurors it was their decision who to indict, and they could indict no one. It seeks to back up that argument by revealing prosecutors suggested Trump and others not face charges.
Arizona grand jury considered charging Trump
"Far from being politically biased, the Attorney General’s Office, despite the Grand Jury’s interest in doing so, asked the Grand Jury to consider not indicting Donald Trump," the response says. The filing says the state also asked jurors not to indict many others, including Arizona Republicans who sent a letter in support of the false electors and an attorney for the Republican Party of Arizona.
The attorney general's request related to Trump came after grand jurors discussed a federal Department of Justice policy. Prosecutors also showed the jury a PowerPoint presentation about the policy, which sets a framework for when federal prosecutors should pursue charges that could also be brought by state governments.
The policy says that "to insure the most efficient use of law enforcement resources, whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should, as soon as possible, consult with their state counterparts" to determine a "single forum" where to proceed.
At the time the jurors were meeting in secret in Arizona, Trump had already been indicted by a federal grand jury in an alleged conspiracy to steal the 2020 election. The federal case may be narrowed because of a broad U.S. Supreme Court ruling in July that said presidents have immunity for official acts. A judge in Washington, D.C., now has to determine which of Trump's actions were unofficial, if any, and can be prosecuted.
Weeks later, Trump was also charged by a county prosecutor in Georgia in a case that also netted charges against so-called fake electors there.
The response filed by Mayes' office quotes an unnamed Arizona prosecutor telling the grand jury about that federal policy: "When you consider—and then I mentioned this before—indicting somebody, even the president, is—is a big deal—even if I was to dismiss it because I don’t know if I have all the evidence to prosecute it at this moment. I think you should weigh this policy heavily. And that would be—that is why I have not recommended that in the draft indictment, despite clear indications from you all that there’s an interest in pursuing a charge against him."
A spokesperson for Mayes declined to comment further on why the office did not want to pursue criminal charges against Trump. Trump's 2024 campaign representatives did not immediately respond to a request for comment.
Jurors considered charges against GOP lawmakers
In another effort to turn the 2020 election results in Trump's favor, 30 Arizona Republican lawmakers and lawmakers-elect asked then-Vice President Mike Pence to give Arizona's electoral votes to Trump, or to invalidate the votes and delay their counting pending an audit. They made that request in a December 2020 letter.
Sen. Anthony Kern, of Glendale, and Sen. Jake Hoffman, of Queen Creek, who are charged in the criminal case, signed the letter. Hoffman was a lawmaker-elect.
The letter was titled as a joint “Resolution” of the legislature, signed by the lawmakers and mailed to Congress as legitimate, according to the court document filed Monday. But the letter was not a “Resolution” because the legislature was not in session, prosecutors said.
When that information came through to the grand jury in the criminal case, the group wanted to charge the lawmakers, according to Monday's filing. Prosecutors “explained the political process” to them in response and told them: “I would be very cautious finding an intent to fraud with all 30 members that signed that.”
Monday's filing provides no additional details about why the state requested the grand jury not charge the sitting and recently elected lawmakers. But prosecutors told the group the decision was ultimately up to them.
“It's — my recommendation still is for all those other ones that you have not heard evidence on,” prosecutors told the grand jury. “I would say give them the benefit of the doubt at this point.”
The Arizona case hit a milestone Monday when one defendant agreed to cooperate with prosecutors. The charges against Jenna Ellis, a former lawyer for Trump, were dropped after she agreed to testify for prosecutors in the case, Mayes announced Monday.
The remaining 17 defendants have pleaded not guilty to charges including conspiracy, forgery and fraud. The pending defense motions to dismiss and other matters, including scheduling, are expected to be considered in a hearing later this month.
Stacey Barchenger is a politics reporter for The Republic. Reach her at [email protected].
Elena Santa Cruz is a justice reporter for The Republic. Reach her at [email protected].
This article originally appeared on Arizona Republic: Arizona fake electors: Why Kris Mayes didn't want to indict Trump
