Arizona ‘Fake Electors’ Leverage Anti-SLAPP Defense, Assert First Amendment Rights

PHOENIX (CN) — Allies of Donald Trump, including Rudy Giuliani and prominent Arizona Republicans, argued Monday for the dismissal of an indictment that accuses them of conspiracy related to the 2020 presidential election. They claim that the indictment violates Arizona’s amended anti-SLAPP statute, which protects First Amendment rights.

In court, 14 of the 16 defendants involved in Arizona’s “fake electors” case asserted that their actions, which included signing a document awarding Arizona’s electoral votes to Trump, were an exercise of their rights to petition the government. Michael Columbo, the attorney representing Republican state Senator Jake Hoffman, posited a key distinction: “There’s a difference between a group of people committing fraud and a group of people expressing an unpopular political belief,” he stated before Maricopa Superior Court Judge Bruce Cohen.

The 2022 amendment to Arizona’s anti-SLAPP law broadened its application to include criminal prosecutions—traditionally applicable only to civil actions. The defendants are now seeking to leverage this law to dismiss nine counts they face, which include conspiracy, forgery, and fraud.

Defense arguments hinged on interpreting their actions, such as filing legal challenges to the electoral outcome and urging Congress to declare Trump the winner, as non-criminal exercises of free speech. They claimed the indictment lacks evidence of an actual agreement to commit a crime among the electors.

Prosecutor Krista Wood contended that the defendants’ actions form part of a broader scheme to overturn the election rather than isolated expressions of political opinion. “It’s not just taking a concern to court,” she emphasized.

Challenges also arose regarding the constitutionality of the amended anti-SLAPP statute, as state prosecutor Nick Klingerman argued it could effectively retroactively change legal standards wrongly. Defendants must demonstrate to the judge that their actions involved First Amendment rights infringed upon by the prosecution as part of their anti-SLAPP motion.

During separate discussions, defense counsel argued that the indictment should be dismissed due to a lack of evidence demonstrating that the electors intended to disrupt the electoral process. Dennis Wilenchik, representing Republican elector and former U.S. Senate candidate James Lamon, argued that the electoral submission was merely a contingency plan contingent on favorable court rulings.

Wilenchik claimed the state’s argument overlooks essential context. “You cannot take this in a vacuum,” he insisted. He maintained that it was clear the electors did not aim to mislead. In contrast, Klingerman noted that the signed documents contained no contingent markers, suggesting a definitive intent to certify Trump as the winner.

As the case evolves, it has already seen two defendants withdraw, with trial proceedings not scheduled to commence before January 2026. The trial is anticipated to last at least eight weeks, featuring around 80 witnesses.

Recent developments include Trump attorney Jenna Ellis agreeing to cooperate with the prosecution, leading to the state dropping charges against her. Additionally, Lorraine Pellegrino, a Republican elector and former secretary for the Arizona Trump Electors, pleaded guilty and received three years of probation.

The defense’s arguments are set to conclude Tuesday, after which Judge Cohen may hold an evidentiary hearing in November if he finds sufficient grounds to proceed.