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It sounds like you believe that technicalities and penumbras are the law. Two slates of electors submit alternate ballots, but one included the magic hypothetical phrase, so they didn't do anything; the other slate didn't, so they did. Do you have any principles or something? Do you think this is a crime or not? This isn't law, it's legalism. And the legal process is controlled by a political class that respects power, not law.
I have a principled opposition to the concept of principles.
Which act specifically? I think some of the things that have been done are crimes and some are not.
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Which of course further underscores the silliness of this all. If the alternative electors had put a caveat in, then no crime. Some of them did of course.
Yet because some didn’t, now Trump is guilty of defrauding the government? Really?
Yes, really. If you do one thing it's a crime, but if you do a subtly different thing it's not a crime. These distinctions exist everywhere.
If you drive through an intersection when the light is green, it's legal. If you drive through the exact same intersection 30 seconds later when the light is red, it's a crime.
Does that hit Trump, though? "Dude, the lawyers who talk to those guys are the ones who tell them which caveats they need to include in order to make it not a crime. What the hell do I have to do with that?"
So, not actually following the details of what is/isn't supported by the indictment, just going with your hypo, suppose that you told some friends, "Take these two cars and head straight to the store." And in the process, one of them ran a red light while the other stopped and waited. You wouldn't be guilty of conspiracy to run a red light. Evidence in favor of the fact that you didn't really have any intent for them to run a red light could be that the other car didn't run the red light.
I think the prosecutors in this case would disagree with @huadpe that the PA electors method was a totally legal and totally cool "easy way out of this". I don't think they would agree to this in part because then it would call into question the extent to which Trump actually conspired toward the actual crime part, rather than the part that might have been totally legal and totally cool. They want to say that the whole scheme is totally illegal, so that Trump only needs to be minorly connected to the overall idea of the scheme in general.
The point though isn't that there's some magic words that make the same act not a crime. The different words make it not the same act.
If I say "I'll drive to the store if I'm sober," and I don't drive to the store because I'm drunk, that is a fundamentally different act than if I had driven drunk.
The PA group specified that they would act as electors if litigation against the election result was successful. It wasn't and so at no point did they claim to be electors.
If all of the fake electors had done the same thing, there would have been no fake electors.
Yeah, but that's kind of the point. Does Trump have any idea what words the various groups of electors used? Did he talk to them about it in any way? Did he just talk to one of the 'co-conspirators' who was maybe like, "Don't worry, I've been talking to the PA folks, and we've figured out a totally legal and totally cool way to do this," but then at some later point, the other groups either didn't get the memo or disagreed and decided to do things their own way? We'd have to fill in a lot of details here at trial. At the end of this hypo, what we've actually done is drive a potential wedge between the people who had knowledge about the actual criminal behavior and other folks (possibly Trump) who might have just thought, "Oh, somebody's got this taken care of in a legal way." And the prosecution would have to close that gap and show that Trump had actual knowledge of the specific things that are supposedly actually bad rather than the things that are hypothesized to not be actually bad.
I think this complication is why the prosecution would absolutely not agree that the PA way is a legal way. It would make their job of directly connecting Trump to the actually-illegal behavior more difficult. It's much easier to just claim that it was all illegal, there was no possible legal way to do it, and the PA folks are just as guilty as everyone else. Then, perhaps they just need to link Trump to the general scheme.
My point is that even if this theory is correct, I'm pretty confident that the prosecution will not agree. If this theory is correct, it would likely be used by Trump's defense, instead. I'm making no real claim as to whether the theory is actually correct or would be accepted by the courts.
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