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No, take Michigan for example. The Board of State Canvassers certified the 16 electoral votes for Biden on November 23. Per the Michigan Constitution, "the certification of any election results by the board of state canvassers shall be final subject only to (a) a post-certification recount of the votes cast in that election supervised by the board of state canvassers under procedures prescribed by law; or (b) a post-certification court order."
Despite this, on December 14, sixteen people got together in the Michigan capitol building, signed a document (alleged to have been provided by the Trump administration) stating that they were the "duly elected and qualified Electors for President and Vice President of the United States of America from the State of Michigan". and that the state had 16 votes for Trump. They then mailed this document to the United States "per 3 U.S.C. § 11" in an envelope labeled "Electoral Votes of the State of Michigan for President and Vice President of The United States".
I guess that's totally fine though because they forgot to attach the certificate of ascertainment of appointment of electors. It's not like anyone in Washington was looking for an excuse to ignore the legitimately certified votes and replace them with a sham or anything.
Despite the fact that we said we won, you said we didn't win. That's fraud!
Your definitions have made a certain kind of political dissent a priori criminal. But our rights don't descend from the Constitution, they descent from nature, and it cannot be a crime to contest the political process.
Isn't the whole point of the argument that they were not official electors because they didn't participate in a legal proceeding? That they had to mail their ballots in? I think you're just making up whatever rationalization makes the charging document make sense.
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.
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