Sen. Jake Hoffman files motion to have indictment tossed in fake electors case

Attorneys for state Sen. Jake Hoffman are challenging Attorney General Kris Mayes' prosecution of 2020 Trump electors and allies, claiming the "zealously partisan" prosecutor filed the case as retaliation.

Hoffman, a Queen Creek Republican, is the second of 18 people charged in the Arizona case tied to the 2020 presidential election to file a motion seeking to dismiss the indictment. The motion filed Monday by Hoffman's lawyer, Tim La Sota, cites a state law allowing quick dismissal in certain circumstances, including when criminal charges are involved.

The 58-page indictment, La Sota wrote in the motion, was retaliation for Hoffman and the others' protected speech questioning of the election's accuracy, association with one another and their petitioning of public officials, like former Vice President Mike Pence, over their concerns with the administration of the 2020 election.

"It is politics by other means," La Sota wrote. "An effort by an overtly partisan elected attorney general to shame and punish her political opponents and critics for exercising their constitutional rights."

Evidence that the case was political and retaliation, he argued, comes in the form of statements made while Mayes was a candidate for attorney general in 2022.

One comment La Sota gave an example of in the motion was a July 2022 post to X where Mayes said she "would have immediately investigated the fake electors" who "videotaped their crime for all to see."

He also took aim at Dan Barr, Mayes' chief deputy, for social media statements. In an August 2022 post, Barr said the electors were "criminals" who "should be prosecuted as such."

"Attorney General Mayes' and Chief Deputy Attorney General Barr's extrajudicial statements demonstrate a strong animus against those who questioned the 2020 election and particularly the alternate electors, including Senator Hoffman, and a desire to prosecute them before any investigation had taken place," the motion reads.

Mayes office declined to comment on the motion and disputed claims of partisan motivation.

"Elected prosecutors frequently make promises to investigate alleged crimes during the course of campaigns," said Richie Taylor, Mayes' spokesperson. "The Attorney General's Office conducted a thorough and professional investigation, and most importantly, an independent grand jury made up of regular Arizonans handed down these indictments."

But in an emailed statement Tuesday, La Sota said Mayes' campaign branded his client and the other defendants as criminals.

"It was more than a mere pledge to investigate whether or not they committed a crime, which would have been ethical," he wrote. Hoffman is represented by La Sota and the Dhillon Law Group, which has represented Trump and his aides in other states.

The motion to dismiss the indictment is based on Arizona's anti-SLAPP law. SLAPP stands for "strategic lawsuit against public participation." The law creates a framework for cases to be quickly dismissed if a defendant can prove the case was substantially motivated by retaliation because they exercised a constitutional right, like freedom of speech.

John Eastman, a former Trump attorney also charged in the case, moved to dismiss the indictment on Friday under the same anti-SLAPP law.

A Maricopa County grand jury issued the indictment in April. The 18 defendants are accused of falsely certifying Donald Trump as Arizona's choice in 2020 when, in reality, voters chose Joe Biden. They face nine felony counts, including conspiracy, forgery and fraud. All have entered pleas of not guilty.

The motion filed on Hoffman's behalf makes several other arguments in favor of dismissal. La Sota argued Mayes misapplied state law because the charges in the indictment require proof of an intent to defraud, which he says Hoffman and the other "elector defendants" had no intent to do.

The indictment itself proves that, La Sota said. Hoffman and the others were following the advice of Kenneth Chesebro, an attorney named in the indictment as "Unindicted Coconspirator 4," who said they should have alternate electors in case any efforts to challenge the election were successful, according to the motion.

It was argued in the motion Hoffman and the other electors did not try to trick or deceive anyone. They were transparent about their election doubts by posting to social media their meeting where they voted for Trump-Pence, calling for legislative actions and filing lawsuits, he said.

La Sota also argued the electors did not obtain a "benefit" such as money or property, which would be subject to prosecution for fraud under the law. He said Mayes was arguing that their benefit was the opportunity for Pence to reject Biden's electoral votes and declare Trump the winner, which he says does not apply.

The forgery counts against his client did not apply, La Sota argued. He said this was because there was no intent and that Hoffman and the others' certification of votes was not a false document since they signed it with their own names — not fake ones or other people's names.

La Sota said the Attorney General's Office did not have jurisdiction over most of Hoffman's fraud and forgery charges because they involve alleged efforts to influence the actions of federal officials.

"Without a clearly established basis for jurisdiction," La Sota wrote, "the State cannot show a clearly established violation of law."

La Sota said in the motion that the conspiracy allegation does not stand either because there is no evidence of intent, nor was there an agreement by Hoffman and the others charged in the case to commit a crime.

Stacey Barchenger is a politics reporter for The Republic. Reach her at [email protected].

Elena Santa Cruz is a justice reporter for The Republic. Reach her at [email protected].

This article originally appeared on Arizona Republic: Sen. Jake Hoffman moves to have Arizona fake electors case dismissed