PHOENIX — Democratic Attorney General Kris Mayes' "fake electors" prosecution faces a legal hurdle: A law that Republican state legislators amended two years ago with the specific goal of shutting it down.
We know that, because that's what the two Republican leaders of the Legislature said in a 23-page "friend of the court" brief filed in late July.
"The Legislature was keenly cognizant of the burgeoning threat posed by politically motivated prosecutions," according to Senate President Warren Petersen and House Speaker Ben Toma.
"The indictment in this case presents precisely the concerns that animated the 2022 amendments."
The law was updated just 18 months after Trump allies tried to overturn election results in several states, including Arizona.
The "politically motivated prosecutions" were being brought at the time by the U.S. Department of Justice against the Jan. 6 rioters.
While not mentioned in the brief, the fake electors in Arizona were also a potential target for prosecutors.
The statute - a so-called anti-SLAPP law - is designed to stifle politically motivated prosecutions of free speech.
The Arizona law is being tested for the first time in the high-stakes fake electors case.
Maricopa County Superior Court Judge Bruce Cohen wrestled with attorneys' hypotheticals involving the anti-SLAPP law during 13 hours of courtroom arguments last week on two defense motions to dismiss the case.
The questions often turned on whether the law would allow guilty people to go free if the alleged criminal acts were protected as political speech.
"The relief potentially granted is extraordinary," Cohen told one defense attorney.
"The goal is not to allow guilty people to be free. It's to prioritize the Constitution for all over the impact on one."
During the 90 minutes he was allotted Wednesday morning to rebut the defense motions, Nicholas Klingerman, chief of the Attorney General's Criminal Division, said:
"Of all the arguments that I've heard over the past two days, the most surprising is the argument that the First Amendment somehow allowed the defendants to engage in fraud, forgeries and conspiracies, to deprive every citizen of their constitutional right to democracy, because some people believe the 2020 election was stolen and because election lawsuits are hard."
"Simply put," Klingerman said, "that is not protected speech. (The law) does not protect that behavior."
The goal of the prosecution, Klingerman said, was to prevent the same thing from happening again.
However Cohen rules on the dismissal motions, an appeal is likely, with the Arizona Supreme Court potentially issuing a precedent-setting opinion months from now.
Cohen might not be around. The judge told the courtroom that he's retiring next year.
Cohen didn't offer a timeline for his rulings on the dismissal motions.
He did, however, set a tentative start date for a trial -- Jan. 5, 2026 -- six years after the alleged crimes occurred.
Sixteen Republican defendants are accused of participating in an illegal scheme to overturn Joe Biden's 2020 victory in Arizona over Donald Trump. Each defendant is charged with the same nine felony counts of forgery, fraud and conspiracy.
Ten of the defendants are Trump 2020 electors accused of signing a phony document that claimed they were the "duly elected and qualified" electors from Arizona.
All defendants have entered not-guilty pleas.
Two of the original defendants - former Trump lawyer Jenna Ellis and elector Loraine Pellegrino - have struck plea deals.
Among the defendants are former Trump lawyer Rudy Giuliani; former White House Chief of Staff Mark Meadows; former Arizona Republican Party Chair Kelli Ward; and two state senators - Jake Hoffman of Queen Creek and Anthony Kern io Glendale.
Meadows has a Federal Court hearing scheduled for Sept. 5 on a motion to move his case from state court to federal court, in an attempt to have the charges dismissed.
To date, five states, including Arizona, have filed criminal charges in similar schemes.
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