In Arizona fake electors case, judge weighs new protection for defendants

PHOENIX — Allies of Donald Trump are using an unusual new Arizona law to urge a judge to throw out a criminal case charging them with fraudulently trying to overturn the state's 2020 presidential election result.

The law they’re citing was designed to stop prosecutors from bringing flimsy cases out of political animus. The defendants now trying to harness it include former Trump legal adviser John Eastman and other Trump confidants, as well as Arizona Republicans who falsely claimed that Trump won Arizona and held themselves out as the state's legitimate electors in the Electoral College.

Arizona Attorney General Kris Mayes, a Democrat who took office in 2023, brought the case in April . Trump was identified as an unindicted co-conspirator.

At an all-day hearing in Maricopa County Superior Court on Monday, Judge Bruce Cohen signaled openness to the defendants' arguments for the charges to be tossed out under Arizona's so-called anti-SLAPP law. If Cohen finds that the arguments have merit, he could order a further hearing to gather evidence about the defendants' claims of political persecution.

Like many states, Arizona has long had on its books an anti-SLAPP law — which stands for "strategic lawsuits against public participation." These laws are typically designed to discourage vindictive and frivolous civil lawsuits against people exercising their First Amendment rights. But in 2022, Arizona’s Legislature expanded the law’s purview to include protection from politically motivated criminal prosecutions as well. It is the only anti-SLAPP law in the United States to offer such protection.

Prosecutors working for Mayes told the judge that the defendants’ claims of politically motivated prosecution are wrong-headed and offensive. And they signaled that, if the case goes to trial, they plan to depict the defendants’ alleged crimes to jurors in exhaustive detail: They intend to call as many as 80 witnesses during a trial that could last three months.

The trial is scheduled to begin in January 2026.

In addition to Eastman and the so-called fake electors, other defendants include Rudy Giuliani, Trump's former personal lawyer; Mark Meadows, Trump's former White House chief of staff; Boris Epshteyn, a close legal adviser to Trump; and Christina Bobb, a Republican Party lawyer focused on elections. One fake elector has pleaded guilty , and another defendant — lawyer Jenna Ellis — agreed to cooperate with prosecutors . The other defendants have pleaded not guilty.

By invoking the anti-SLAPP law, the defendants argue that they lawfully exercised their First Amendment rights in the aftermath of the 2020 election, and that Mayes’ prosecution is retaliatory. The anti-SLAPP law allows them to seek to have the criminal case dismissed quickly — assuming they can convince the judge that they have been charged under a legal theory that is not "clearly established."

The law itself is so untested that, in court on Monday, lawyers couldn’t even agree on its acronym. There are 16 defendants in the case, and their lawyers crowded into the courtroom, with many sitting in the jury box because there wasn’t enough room elsewhere. After one of the first mentions of the law, Richard Jones — a goateed lawyer in a pink blazer who represents former Arizona Republican Party head Gregory Safsten — said the law now covered all legal “action,” not just lawsuits, and suggested a new acronym.

“From here on out, we should be referring to these as anti-SAAPP,” he said, dramatically elongating the last syllable.

Cohen did not rule on the defendants' bid for an evidentiary hearing on their political persecution claims. He was scheduled to hear further arguments on Tuesday.

A lawyer for defendant Jim Lamon, one of the fake electors, argued that the actions described in the indictment weren't actually illegal. The document Lamon signed purporting to be a “duly elected” Trump elector wasn’t fraudulent when put into proper context, the lawyer, Dennis Wilenchik, argued. He said the word “elected” can be used interchangeably with the word “appointed,” and there was no dispute that the state Republican Party chose Lamon as one of its electors. And, he added, Lamon believed the document he signed was merely a backup in case a court determined that Trump had defeated Joe Biden.

Lamon and his cohorts in Arizona, like numerous other Republican activists in swing states that Biden won in 2020, signed paperwork on Dec. 14 of that year claiming to be lawfully chosen presidential electors. The paperwork in Pennsylvania and New Mexico included language indicating that the documents were contingent on court challenges. But in Arizona, the paperwork didn’t have any language saying it was contingent. And prosecutors argued that, in fact, it wasn’t contingent — that the electors instead participated in a scheme to create fraudulent documents that could be used to pressure then-Vice President Mike Pence into rejecting the election results on Jan. 6, 2021.

At one point during Monday's hearing, the judge asked whether Arizona's Republican-controlled Legislature had passed the expanded anti-SLAPP law specifically in anticipation of charges against the Republican fake electors.

Michael Columbo, an attorney representing state Sen. Jake Hoffman, said he didn’t have inside information on why the law was passed. But he noted that Arizona’s political climate has become intense.

“Being dragged into a prosecution can be financially devastating,” he said. “It will destroy your reputation. It can wreck families."

"There's a prudence" to a law that allows defendants to resolve their First Amendment defense early in a case, well before it reaches a jury, Columbo added.

Columbo and other defense lawyers argued that there are enough signs that the attorney general acted out of political animus to justify an evidentiary hearing on the issue under the anti-SLAPP law. They have noted that Mayes promised to investigate the fake electors during her campaign for attorney general, alleging they “videotaped their crime for all to see.”

They also noted that her top deputy posted a message on the platform X appearing to gloat about Giuliani being served with the indictment at his birthday party.

Cohen, the judge, sounded open to their arguments on Monday, and began discussions about when an evidentiary hearing could take place and what such a hearing would look like.

Stephen Binhak, a lawyer for Arizona Republican leader Tyler Bowyer, said the new anti-SLAPP law represents “a fundamental sea change in how criminal law works.”