Arizona prosecutors asked grand jurors not to indict Trump in fake electors case, court records show

The Arizona grand jury that indicted 18 Republican supporters of former President Donald Trump who falsely claimed he won the state in the 2020 election wanted to consider also charging Trump, but prosecutors urged them not to, according to court documents filed this week.

The court records filed by Democratic Attorney General Kris Mayes’ office contain exchanges between prosecutors and the grand jurors, who heard 18 days of testimony.

As grand jurors were considering possible charges, a prosecutor asked them not to indict Trump, citing a U.S. Justice Department policy that limits the prosecution of someone for the same crime twice, and making a PowerPoint presentation on that policy. The prosecutor, who isn’t identified in the records, also didn’t know whether authorities had all the evidence they would need to charge Trump at that time.

“I know that may be disappointing to some of you,” the prosecutor said. “I understand.”

Ultimately, the grand jury indicted 18 people on forgery, fraud and conspiracy charges, including the 11 Republicans who submitted a document falsely claiming Trump had won Arizona, five lawyers connected to Trump and two former Trump aides.

Although Trump wasn’t charged in the Arizona case, the indictment refers to him as an “unindicted coconspirator.” The former president is charged in a federal case brought by special counsel Jack Smith with plotting to overturn the 2020 presidential election. 

Jason Lamm, a former prosecutor who now works as a criminal defense attorney in Phoenix, said Mayes’ office isn’t bound by U.S. Justice Department policy. 

“That was a choice, rather than an obligation,” said Lamm of prosecutors asking grand jurors not to indict Trump.

Lamm, who doesn’t represent anyone charged in the case, said even if Trump had been indicted and Mayes’ office didn’t want to prosecute him, “there would have been alternative means to dispose of the case rather than potentially infringe on the autonomy of the grand jury.” 

The filing by Arizona prosecutors also revealed that they had asked grand jurors not to bring charges against a group of Republican state lawmakers for signing a document that urged then-Vice President Mike Pence to accept the Arizona fake electors’ forged electoral college certificates.

When grand jurors inquired about charging the 22 sitting Republican lawmakers and eight others who had won election but hadn’t yet taken office, the prosecutor expressed caution when talking about proving an intent to defraud by all legislators who signed the document.

Earlier this week, attorney Jenna Ellis signed an agreement with Arizona prosecutors who will dismiss charges against her in exchange for her cooperation. She pleaded guilty in Georgia last year to a felony charge over efforts to overturn Trump’s 2020 election loss in that state.

Also, Republican activist Loraine Pellegrino, who signed the document falsely claiming Trump had won Arizona, became the first person to be convicted in the state’s fake elector case. Prosecutors say she pleaded guilty to a misdemeanor charge of filing a false document.

The remaining defendants, including former New York City Mayor Rudy Giuliani and Trump presidential chief of staff Mark Meadows, have pleaded not guilty.

Eleven people who had been nominated to be Arizona’s Republican electors had met in Phoenix on Dec. 14, 2020, to sign a certificate saying they were “duly elected and qualified” electors and claimed Trump had carried the state in the 2020 election. President Joe Biden won Arizona by 10,457 votes. A one-minute video of the signing ceremony was posted on social media by the Arizona Republican Party at the time. The document was later sent to Congress and the National Archives, where it was ignored.

Prosecutors in Michigan, Nevada, Georgia and Wisconsin have also filed criminal charges related to the fake electors scheme. Arizona authorities unveiled the felony charges in late April.

The grand jury excerpts were contained in a document in which prosecutors responded to requests by some defendants to dismiss their charges.

Defense lawyers argued their clients’ actions were based on their constitutionally protected speech rights. They also accused the Arizona Attorney General’s Office of bias against the defendants.

In their response, prosecutors said grand jurors are independent and have discretion over whether to bring charges against a person.

In one exchange, a grand juror questioned an investigator about whether Mayes or any member of her staff wanted a specific outcome from the investigation. “Absolutely not,” the investigator answered.