Speaker 1: Today, we're going to be speaking with Jeffrey Mandel, who's president and lead
counsel at Law Forward, the firm that filed the landmark lawsuit against the fraudulent
2020 electors in Wisconsin.
Really great having you on.
I appreciate your time.
Speaker 5: Thanks so much, David.
It's great to be here.
Speaker 1: So just to get everybody kind of up to speed, we saw attempts at this fake
elector scam in a number of different states, Arizona's one place where it made a lot of
news.
The concept was even though Joe Biden won.
What if we.
We meaning typically some Republicans.
What if we just send Republican electors to say we're giving our electoral votes to Donald
Trump anyway?
That's the gist of it.
Is that right?
Speaker 5: That is the gist of it.
It requires us stepping back and sort of thinking back to Schoolhouse Rock and our basic understanding
of, sir, we all think that every fourth November we go to the polls and we vote for a candidate
for president.
Right.
People say, did you vote for Biden or did you vote for Trump?
But in reality, you're voting for a slate of electors who will represent your state
in the Electoral College.
It is not the popular vote.
It is that Electoral College vote that chooses the president.
And so what we had was seven states where even though the popular vote said that the
electors pledged to Joe Biden and Kamala Harris would represent that state in the Electoral
College.
Nonetheless, electors who were pledged to Donald Trump and Mike Pence chose to meet
and submit papers claiming that they were actually the valid, qualified and duly elected
electors for their state.
So in Wisconsin, for example, what that meant was we had ten individuals and as you note
there, mostly Republican Party bigwigs who decided that they knew better than 3.3 million
of their neighbors, a record 3.3 million Wisconsinites voted in 2020.
And these ten people decided that they didn't care what those other 3.3 million people thought
they were going to take it upon themselves to hijack Wisconsin's participation in choosing
the next president.
Speaker 1: Now, when we talk about the January six committee, there's an investigation happening
in Georgia, etc., the question of criminality of some of the different things that were
attempted is often brought up, to be clear.
You have filed a lawsuit that seeks damages.
The criminality question is a different one when it comes to these schemes.
Is that right?
Speaker 5: That's right.
And I do think that at least here under Wisconsin state law and around the country, under federal
law, I think that there is a likelihood that many of these people committed crimes, crimes
and could be prosecuted and potentially put in jail.
But what we're filing is a civil lawsuit that seeks civil remedies and will be a way of
trying to learn more about exactly what did happen here in Wisconsin and how it worked.
Because a civil lawsuit comes with discovery, the opportunity to see document is to take
depositions and have testimony.
Speaker 1: I'm trying to think back there was this kind of circus tour that went around
the country that involved Rudy Giuliani and Jenna Ellis and sometimes Sidney Powell and
others.
Did did that circus go through Wisconsin around the same time that the fake elector scam was
being kind of conceived?
Speaker 5: Well, the circus never came fully to town here in Wisconsin.
Rudy Giuliani, for example, to my knowledge, never came to Wisconsin.
We did have one of Sidney Powells crackin lawsuits.
Yes.
And conspiracy theories here in Wisconsin.
And what's interesting about that, I mean, there are a lot of things that are interesting
about that.
But one of the things that's interesting about that is the plaintiff that Sidney Powell represented
in that lawsuit is one of the fraudulent electors right here in Wisconsin.
So all of this is tied together.
And so the circus came to town through the courts, but it never came to town with the
with the full media entourage.
Speaker 1: So in terms of your lawsuit, I mean, what are you alleging?
What are the damages?
Who.
Who was damaged, so to speak?
Speaker 5: Sure.
So we represent three plaintiffs.
Two of them were actually the among the valid electors for Joe Biden and Kamala Harris.
Okay.
One of them is a voter who feels strongly that these people tried to disenfranchize
her and steal the value of her vote by going against the will of the voters.
And what we're doing is we're using some old established common law ideas to try to get
at this conduct.
Fundamentally, the problem is, nobody ever thought that someone would try something as
audacious as what these fake electors did in these seven states.
So there is no law that says you can't do that because we don't pass laws that tell
people not to do things that nobody would ever imagine someone would do.
And that has led to this challenge of saying.
No matter who we talk to, when we explain what the fraudulent electors did, everyone
says, Oh, that can't be right.
That can't be legal.
That offends my most basic sense of fair play and civic understanding of democracy.
Right.
But there isn't a specific law.
So what we've done is we've taken some very old principles from the common law and said
that we think that these fit.
So one of them is public nuisance, right?
Our election system and our democracy is a finely calibrated and somewhat fragile structure
that is for the public good.
And there is a long standing idea that if if I take private action that harms the public
good, someone can try to stop me using a doctrine that says that I'm creating a nuisance to
the public for my own benefit, but everyone else's detriment.
So we're using that theory.
We're using a theory of civil conspiracy that these ten electors and thus far, we've also
named two lawyers who assisted them.
And we might need to add more people as we find out who else was involved.
All right.
The January 6th committee recently made quite clear that Senator Johnson seems to be involved,
but that these people conspired to break the law, whether they ultimately did break the
law.
Right.
That's sort of the criminal question.
But the fact that they were trying to break the law, that they were trying to convince
Congress to take these papers, that in itself, we think is actionable.
And there is a long, long standing idea.
And I apologize for the Latin, but it goes under the name of quo work.
And so this is a writ that an order that you could go to for hundreds of years to court
if you were supposed to serve in a public office.
But someone else was occupying that office and keeping you out of it.
And so we are bringing a claim for such an order on behalf of the actual electors that
these other people have tried to usurp that office.
And by saying we trump fraudulent electors, we are the real electors, they're implicitly
saying that the Biden electors are liars and are not the real electors.
And so we're also bringing a claim under under that.
Speaker 1: You have the have the have the fraudulent electors had to personally lawyer
up as a result of this.
At this point.
Speaker 5: They have.
So they've all hired counsel and were in those early stages of lawsuits, as you know, David.
Litigation can be kind of slow.
Yes.
So we're in the early stages of the lawyers sort of hoovering.
We filed in state court.
They would rather be federal court, which is not where this case belongs.
And so we're in the process of bringing it back to state court.
Speaker 1: What kind of damages and restitution are you seeking here?
Speaker 5: So we're seeking a number of things.
First, we're seeking a clear and unambiguous order from a court that what happened here
was improper and unlawful and it should never happen again.
Second, we are seeking an order that would prohibit any of these people from ever being
involved with the Electoral College in Wisconsin again, because it seems to me that they have
abused the privilege of being part of our civic fabric, and they should they should
not have that opportunity again, aggrieved.
Third, we are seeking deterrence.
We want accountability and we want deterrence.
We never want to see this happen again.
And so we are seeking punitive damages for the fact that these folks deliberately interfered
in the legal rights of the real electors.
And under Wisconsin law, those punitive damages could be up to $200,000 for each of the defendants.
Speaker 1: Have you been in touch with potential with lawyers that are potentially looking
at doing this in other states where these schemes were hatched?
Speaker 5: We've certainly we've certainly had some conversations and some outreach.
It is my hope.
I really believe that both accountability and deterrence are essential so this doesn't
happen again.
And so it is my hope that we will see cases like this in all of the states.
Speaker 1: One of the big questions is if whoever had followed through on this, like
if these electors had gotten on a plane or, you know, whatever the real attempt was, a
bona fide attempt, what would have happened?
Like could could they have said, no, we believe that Trump gets these votes.
And then what would have happened?
I mean, John Eastman wrote this memo of what Pence could do.
He's now in legal jeopardy himself.
He's had the lawyer up.
The FBI recently seized his phone.
You know, he's got his fair share of problems for even suggesting this framework.
But there's this question of like, if they both show up, then then what would have happened?
Speaker 5: Well, I mean, the reality is we came a lot closer to that then than we'd like
to think, because I think your intuition that the Electoral College happens in Washington
is a common one, but that's actually not right.
The Electoral College happens in each state's capital at the same time, on the same date.
And so when these fraudulent electors in Madison on December 14th of 20.
They and they signed these papers claiming to be the real electors.
And when that happened in Arizona and in Georgia and in Michigan and in Nevada and in Pennsylvania
and in New Mexico, that that was the thing.
Speaker 1: They submitted these paper.
That's the act.
In other words, like the real electors did it on that day and the fake electors did.
And then so at that point, it's.
But they've both done it.
Speaker 5: That's absolutely right.
And it really all came down to two.
Then Vice President Pence, if he had followed John Eastman's wishes and been willing to
credit those votes, then we would have seen the chaos.
We would have seen how Congress reacted.
And we've seen almost certainly litigation, but we really would have been in a constitutional
crisis.
It is, to Mr. Pence's credit that he refused to go along with that and recognize that in
our in our democracy, the will of the voters really is sacrosanct.
Speaker 1: Yet Thom Hartmann, radio host Thom Hartmann has an interesting Twitter thread
from in the last week.
It might be a few days ago where he kind of outlines.
What this could look like in 2024 with the difference that there is a move to accept
different electors, and that although we all intuitively know that's not right, it's not
what's supposed to happen, it would be a violation of the will of the people.
All of the things that you've said, it's not so cut and dry that it obviously fails, that
it could get pretty complicated and dicey for a period of time.
Speaker 5: It absolutely could.
And one of the ways that that could happen is if state courts that support the losing
candidate wanted to sort of muddy the waters.
In Wisconsin, for example, the we had a partial recount.
President Trump's campaign asked for a recount in in the Madison area and Milwaukee.
And then when they didn't like the results of that recount, that actually showed that
that Biden won by more votes.
They they they filed a lawsuit, as they're entitled to do, to challenge the results of
the recount.
And that case went up to the Wisconsin Supreme Court.
The Wisconsin Supreme Court took unprecedented actions.
I don't think this had ever happened before.
The case came in on a Friday afternoon.
The Electoral College was meeting on Monday at noon, and that's a statutory deadline.
And so the court had people brief late at night on Friday night.
They held oral argument by Zoom on Saturday, and they issued a full opinion with all of
its reasoning, everything on Monday morning, so that they would have given the final word
on the election results in Wisconsin before the Electoral College met.
But imagine, I mean, Mr. Eastman's arguments would be much stronger if the court had not
done that.
If there was still a question about who the legal winner in a state was then.
There is a much better argument for these dueling slates.
And you really have questions then about how Congress is supposed to resolve this or what
they're supposed to do.
So we could with what we've learned from 2020, we could imagine in 2024, a number of actors
taking making specific decisions to try to leave more flexibility for Congress or the
vice president or make this uglier and harder in ways that are really, really dangerous
to our democracy.
Speaker 1: Very, very scary.
But one piece of what is being done is this lawsuit.
And we've been speaking with Jeffrey Mandel, president and lead counsel at Law Forward.
Thanks so much for talking to me today and explaining what you're what you're doing.
Speaker 5: Thanks, David, for having me.
It's a pleasure.
I appreciate your attention to this and I hope we can come back and update you as it
moves forward.