Still more fallout from allegations of 2020 election fraud

Ed Martin’s “Final Pardon Statement … on the Comprehensive Pardons for Contingent Electors and Affiliates” argues for a complete and unconditional presidential pardon for everyone involved in organizing, voting as, advising, or publicly supporting the 2020 “contingent/alternate” elector slates.  Martin, who is the U.S. pardon attorney, frames their effort as a lawful, constitutional safeguard for an election “marred” with state-level irregularities and egregious censorship.  The 15-page letter asserts that the justice system was weaponized to prosecute citizens performing protected federal functions.  As a result, dozens of electors, attorneys, and allies faced unjust indictments or professional sanctions.

Citing Article II (Executive Branch) and the Twelfth Amendment, Martin says contingent electors were a constitutionally protected stopgap while litigation and legislative reviews were pending in seven states (WI, MI, AZ, PA, GA, NM, NV). He also challenges the “Trump lost all his cases” narrative, noting that there were only two evidentiary hearings among myriad lawsuits: “In the most brazen example of judicial fecklessness, the Chief Judge of Fulton County, Georgia, was slow to appoint a judge eligible under Georgia law to hear the evidence in the election contest filed by President Trump.”

Martin states,

The utter failure of the judicial branch of government to hear and take seriously the allegations of election irregularities and violations of state election laws prevented a thorough examination of evidence and left legitimate grievances unaddressed, further eroding trust in the electoral system.

Martin portrays 2020 as a break with longstanding practice on many fronts.  Using the pandemic as an excuse, Martin asserts, partisan officials bypassed state legislatures, rapidly expanded mail-in voting without adequate safeguards or infrastructure, and ignored bipartisan warnings about vulnerabilities.  He cites reported failures in signature verification, chain of custody, observation, and record-keeping; allegations of double-scanned or missing ballots; problematic registration activity; machine and data-handling issues; and pressure to certify despite disputes.  He also faults the influx of private election funding (roughly $1 billion) and says many concerns were supported by affidavits and expert analyses.  The failure to address these concerns, he argues, deepened public distrust.

The memo further claims that a “massive, covert social-media censorship operation instigated by federal officials” compounded the problem.  In Martin’s words, “both legacy and powerful social media blatantly and aggressively censored information harmful to then-Candidate Biden’s campaign,” including material from Hunter Biden’s laptop.  After the election, platforms allegedly suppressed discussion of election-integrity issues.  This, he says, deprived the country of a free and open debate at a critical moment.

Against that backdrop, Martin defends the “duly chosen Trump electors” who met as “contingent slates,” arguing that their actions were taken “based on sound historical and legal precedent” to preserve options while state and federal challenges played out.  He emphasizes that some certificates explicitly stated they would become effective only upon a final court order.  Nevertheless, he notes, forty-eight individuals — including the president himself and his chief of staff—were indicted by “partisan Democrat attorneys general in three states and one corrupt district attorney in Georgia.”

Martin also criticizes the federal response to January 6, an event inextricably linked to the 2020 election.  He writes that Biden’s DOJ “ruthlessly prosecuted more than 1,500” defendants “to inflict political pain,” citing early-morning raids, pretrial detention, and the D.C. venue as examples of “broad misuse” of law enforcement and intelligence powers referenced in Executive Order 14147.  He says the administration pursued cases “oriented more toward inflicting political pain than toward pursuing actual justice” and contends that the DOJ violated “every principle of our Constitutional democracy by prosecuting President Trump for his official (and entirely appropriate) acts as President,” a prosecution that he notes “was eventually dismissed.”

For precedent, the letter points to the U.S. Supreme Court’s Bush v. Gore, which references the1960 presidential election in Hawaii, where a Democrat contingent slate met while litigation and a recount were pending.  After Kennedy prevailed, the governor certified that slate, and Congress counted it.  Martin argues that the 2020 certificates mirrored this approach and served as legitimate placeholders during an unresolved contest.  He also notes the January 2, 2021 Cruz-Johnson statement calling for a 10-day audit by seven senators and four senators-elect, underscoring that a formal congressional review was sought before the count.

Finally, Martin says a categorical pardon is warranted because the elector-slate activities were federal in character — tied to Congress’s duty to receive and count electoral votes under the Twelfth Amendment and 3 USC §15 — and thus ill suited to state criminal theories.  He invokes principles that even brief infringements on constitutional rights cause irreparable injury, arguing that prolonged prosecutions impose intolerable personal and civic costs and damage federalism.  The requested remedy is a full, complete, and unconditional pardon covering all conduct related to organizing, voting as, supporting, or advocating for 2020 contingent electors, whether or not recognized by a state — an act he frames as necessary to end a “grave national injustice” and advance reconciliation.

For some, the pardons will not “terminate the lawfare totally,” said attorney Jeff Clark.  Clark thanked the president for the pardon but noted that he is still fighting the D.C. Office of the Disciplinary Counsel over his law license.  Prosecuted after the 2020 election, he was targeted for drafting an internal, unsent document urging Georgia officials to re-examine 2020 results amid reported irregularities.  He faces disbarment, similar to colleague John Eastman.  “I wish the pardon would terminate the lawfare totally — and under SCOTUS’s venerable Ex parte Garland decision, it certainly should,” he wrote, while warning that disciplinary proceedings may continue.

He and others also continue to battle Fulton County.  In a Nov. 10 X post, Clark wrote the following:

I did nothing wrong when I questioned the 2020 election in Georgia, including by drafting an unsent privileged letter urging Georgia officials to launch their own investigations and then decide for themselves how to proceed.

I shouldn’t have had to battle this witch hunt for 4+ years. Trump’s group pardon applies to me and others, aiming to end the lawfare.

I wish the pardon would terminate the lawfare totally — and under SCOTUS’s venerable Ex Parte Garland decision, it certainly should. But zooming in on the DC Office of Disciplinary Counsel, we expect the leader of that office not to drop his case. Instead, we expect him to claim In re Abrams overrides Ex Parte Garland in DC, which we think is an error of law. Pray he surprises us and moves to dismiss the matter.

The events of 2020 and the years that followed were unprecedented in American politics.  There are still battles to fight, and Martin’s letter is an important step in restoring public trust in the Department of Justice.  It offers a coherent argument for a categorical clemency policy grounded in historical precedent, federalism concerns, and a vision to restore trust in the country’s elections.

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Image: Gage Skidmore via Flickr, CC BY-SA 2.0.