In the seven battleground states in the 2020 presidential election (Nevada, Georgia, Michigan, Wisconsin, Arizona, Pennsylvania and New Mexico), there were 84 “fake electors” who signed false certificates claiming Donald Trump won the election in their state, and that they were valid electors casting their votes for him.

Media commentary about the pending criminal trials concerning the election has primarily been from former or present prosecutors. They do not generally focus on the costs involved in mounting a defense. For the "fake electors" who have been charged with committing a crime (three were previously indicted in Georgia and 16 in Michigan), here is what they have had to decide — should they plead guilty or go to trial?

In Nevada, on Dec. 6, a grand jury indicted six Republicans who claimed they were electors for Trump. They were charged with forging and submitting fraudulent documents with Congress, the national archivist and the local federal district court judge as part of the multistate effort to overturn President Joe Biden’s national 2020 election victory. The certificates claim Trump won the election, which was false, and that they were the valid electors who may cast their votes for Trump in the Electoral College.

The six were state GOP Chair Michael McDonald, Vice Chair Jim Hindle, national Committeeman Jim DeGraffenreid, Clark County Chair Jesse Law, and Douglas County executive board members Shawn Meehan and Eileen Rice. All pleaded not guilty during their arraignment Monday morning in Clark County District Court.

If the “fake electors” had pleaded guilty, and they have no criminal record, they likely could have negotiated a plea that does not involve prison.

The alternate electors in Pennsylvania and New Mexico are not subject to the same criminal exposure. They added a disclaimer stating that the certificate will be effective only if Trump supporters were successful in litigation establishing election fraud.

For the indicted electors in Nevada, Georgia and Michigan, there is a substantial probability they will be found guilty at trial because the certificates they signed appear to be authentic with the same language as the certificates that the valid electors signed. The certificates of the fake electors are fraudulent on their face, and this will be easy to establish.

In a four-month trial, which is the projected length for the upcoming RICO (Racketeering Influenced and Corrupt Organizations) trial in Georgia, the three electors indicted can expect their trial to be a similar length. If they do not enter a plea deal, they will lose income for four months and incur legal fees as high as $500,000. For the 16 Michigan electors, their trial in Michigan would likely be shorter and the costs of defense not as high, but they have a similar decision to make.

Consequently, it is highly likely that common sense and self-interest will prevail and some, if not all, of the fake electors are likely candidates to plead guilty. Those who have not been charged in the present indictments may nonetheless be called as witnesses in the upcoming trials. Some of them may claim their Fifth Amendment right to not testify.

It is very difficult to predict the outcome of jury trials. However, when a defendant is going to trial, the potential settlement of the case is based upon a prediction of what the likely verdict will be. Therefore, lawyers advising clients who are facing trial must try to anticipate the outcome of jury deliberations. This is especially difficult in a RICO trial such as in Georgia because of the multiplicity of potential defendants and variety of criminal acts creates great potential variability in the verdict.

The defendants who are the earliest to plead guilty are likely to receive more favorable deals than those who wait. The plea deal that is offered will graduate in degree of punishment related to the role of the individual defendant and the value of their potential testimony. In a RICO trial, the possibility of unexpected adverse testimony that affects a specific defendant is a variable factor in deciding whether to plead guilty.

More complexity enters into the decision of an individual defendant when you consider that there will be multiple trials concerning various aspects of the conspiracy to overturn the election. Evidence that is admitted in the Department of Justice trial in Washington could also be introduced in the Georgia RICO trial. In addition, there are unindicted co-conspirators in both trials. The threat of their being indicted may result in testimony that will be employed to convict other defendants.

Given the amount of information generated by the House Select Committee to Investigate the January 6 Attack on the United States Capitol, the DOJ special counsel and the Fulton County district attorney in Georgia, there is an enormous amount of data to review in anticipation of trial. The preparation will be extensive, which also affects the costs of defense.

Looking at the Nevada fake electors and those indicted in other battleground states, there is a financial component to these cases that will impact the decisions of the defendants. As a result, some of them may have to plead guilty because they can’t afford the legal fees.

David. H. Moskowitz is a retired Pennsylvania lawyer and the author of “The Judge and the President: Stealing the 2020 Election.” His wife was a 2020 elector for Joe Biden in Pennsylvania.

The Nevada Independent welcomes informed, cogent rebuttals to opinion pieces such as this. Send them to [email protected].