Fake electors in Arizona

Pro-Trump fake electors in Arizona have pleaded the Fifth before grand jury

Requiring the targets of the probe to invoke their rights in front of grand jurors is an unusual tactic that raises a risk of bias, legal experts say.

By BETSY WOODRUFF SWAN

Arizona Republicans who falsely posed as electors for Donald Trump in 2020 have appeared before a grand jury in recent days and invoked their Fifth Amendment right against self-incrimination, as state prosecutors near a decision on potential criminal charges against those who helped Trump try to overturn his loss in the state.

The prosecutors’ decision to require these people to appear in person is the latest escalation of the long-running probe by the state’s attorney general, Kris Mayes, into election interference by Trump allies. The tactic is also highly unusual and risks biasing the grand jury against key targets of the probe, according to independent legal experts who have worked as both prosecutors and defense lawyers.

If the grand jury charges them, it could even provide a longshot basis for the targets to challenge the indictment.

“My view is that the better practice is not to call people before the grand jury who you know are going to invoke the Fifth Amendment,” said Paul Charlton, a former Arizona assistant attorney general. “Why? Because all that does is unnecessarily prejudice the grand jury.”

The Fifth Amendment of the Constitution allows people to avoid answering questions from investigators if they fear those answers could incriminate them. Pleading the Fifth is not an admission of wrongdoing, but grand jurors who watch someone invoke the amendment might unfairly assume the person is guilty. That’s why targets of an investigation are seldom asked to testify in front of a grand jury, especially if prosecutors know in advance that the targets will invoke their rights to not answer questions, experts say.

But prosecutors working for Mayes have required some of the false electors they’re investigating to physically appear before the grand jury and formally assert their Fifth Amendment rights — despite the fact that their defense lawyers told prosecutors they would take that step, according to two people familiar with the probe who were granted anonymity to share the details on the sensitive investigation.

“Is it weird? Yeah,” said Omer Gurion, a Phoenix criminal defense lawyer who is not involved in the case but has defended clients facing other attorney general probes. “I would say this is highly unusual. Is it permissible? Yes. Is it a good idea? Definitely not.”

A spokesperson for Mayes declined to comment.

The Justice Department’s manual for federal prosecutors says that when subpoenaed targets and their lawyers say they plan to plead the Fifth, those targets should ordinarily be excused from grand jury testimony.

Renato Mariotti, a former federal prosecutor, said the attorney general may have departed from the typical practice in hopes of pressuring potential defendants to become cooperating witnesses.

Mayes, a Democrat who was elected in 2022, replacing a Republican, launched the investigation last year into the efforts of Trump allies to upend Joe Biden’s victory in Arizona. At the center of those efforts was a slate of 11 Republicans who signed papers claiming to be the state’s electors in the Electoral College. The so-called alternate electors included several high-profile state Republicans, including former state GOP chair Kelli Ward and two current state senators, Jake Hoffman and Anthony Kern.

Prosecutors in three other states — Georgia, Michigan and Nevada — have brought criminal charges against pro-Trump false electors in their states.

POLITICO revealed earlier this month that Mayes had issued grand jury subpoenas and was nearing a decision on criminal charges in Arizona. Her decision to haul the false electors before the grand jury — and their decision to plead the Fifth — is the latest escalation of the probe.

Gurion, the Phoenix defense attorney, said Arizona prosecutors have never forced any of his clients to plead the Fifth in front of a grand jury. Instead, he said, when his clients decide to plead the Fifth in response to subpoenas, he informs prosecutors in advance, and the prosecutors don’t make his clients assert their rights in person.

Lawyers for people subpoenaed in the fake electors probe took the same approach, according to the two people familiar with the investigation. Those lawyers told prosecutors that their clients would plead the Fifth in front of the grand jury. Prosecutors, however, still required them to appear in person to assert those rights.

Charlton said the decision points to an unusually fraught relationship between prosecutors and defense lawyers.

“There’s a measure of cooperation that you see — at this stage in particular — that isn’t reflected in a defense attorney saying, ‘My client’s going to take Five’ and the prosecutor saying, ‘If they take Five, it’s going to be in front of a grand jury,’” said Charlton, now a partner at the law firm Dentons. “That’s an unusual discussion to have.”

Gurion said the practice could even be a basis for anyone indicted under these circumstances to try to have the indictment thrown out.

“I would say that forcing them to invoke the Fifth Amendment created a bias in the grand jury against them and allowed the grand jury to consider their exercise of their constitutional rights against them, which is something that is not permitted,” he said.

But Mariotti, the former federal prosecutor, said such a motion would face an “uphill battle,” even if Mayes’ office had crossed a line.

“It’s the sort of thing that a defense attorney of course is going to raise because, if nothing else, it’s going to show the judge that the prosecutors are acting aggressively, and raise the specter with the judge that perhaps the client is being unfairly targeted.”

“Prosecutors have extraordinary discretion,” he added, “and they should use that discretion very carefully and treat potential defendants fairly — not just lawfully, but fairly. And this is unfair.”

Regardless of the move’s strategic value, it’s far outside the norm, according to David Lish, a former prosecutor in Arizona who now practices criminal defense. Usually, he said, grand juries just hear from one or two witnesses: the detective or case agent working on the investigation.

“I’ve never had a client who’s been ordered to appear in front of a state grand jury who was the target of that investigation,” he said. “That’s not normal practice.”