According to Jack Smith, the Electoral Count Act (ECA) gave Mike Pence and the members of Congress only one job to perform on January 6, 2021: collect, count, and certify. Smith calls it the “federal government function,” and he claims Trump and his six co-conspirators took actions aimed at violating that “bedrock” function of our federal government.

That is how the Special Counsel starts the Trump indictment, and believe me, he lays it on thick. There are numerous references to the three C’s and to federal government function.

However, the Special Counsel’s supporting arguments seem strangely incongruous. Starting around paragraph 12 and proceeding for dozens and dozens of paragraphs, the Special Counsel supports the indictment by trying to prove there was no fraud in the various swing states. Why would he spend so much ink on fraud in the states if the ECA only involves the simple federal function of collecting, counting, and certifying?

Jack Smith does that because he knows the Trump team will claim, with considerable impact, that the so-called federal government function may have a limitation: state certifications that were impacted by fraud.

If the defense can show that Trump and company knew there was significant state election fraud or merely believed that there was fraud, it will be much harder to get a conviction. 

Now, be advised that I am not an attorney: I am just an accountant who knows how to read and research. A technique I often use is to read someone’s views before the occurrence of controversies that could have changed those views.

One source I referenced for this article was the Congressional Research Service (CRS), which describes itself as a “federal legislative branch agency located within the Library of Congress...” Specifically, I read a 2016 CRS article titled, “Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress.”

According to CRS:

...the grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was... not “lawfully certified” according to state statutory procedures.

CRS adds this important clarification:

It should be noted that the word lawfully was expressly inserted by the House in the Senate legislation (S.9, 49^th Congress) before the word certified (emphasis as written). Such addition arguably provides an indication that Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law (emphasis added).

Another pertinent reference is a 2004 article by Stephen A. Siegel in the Florida Law Review. In “The Conscientious Congressman’s Guide to the Electoral County Act of 1887,” Siegel notes that the 1887 ECA made it clear that Congress cannot override “the state’s final determination process as duly appointed under state law... because of a mere error.” However, whether this standard “is subject to a fraud exception is unclear, as is the scope of that exception, if it exists” (emphasis added).

I suggest that the fraud exception does exist, because it has to exist. Let me prove that with this hypothetical example:

After the 2020 election, many disturbing claims were made by True the Vote (TTV), which provided the underlying research and narrative for the movie, 2000 Mules. So-called fact checkers rushed out opinions designed to disparage the claims of widespread ballot harvesting. Personally, I believe the fact checkers were biased, naïve, and completely wrong; and I have written separately on that subject. Nevertheless, I will concede that the TTV narrative is far from being proven -- at this point in time.

But imagine that conclusive proof of the TTV allegations is produced six months from now, and it shows that Russian or Chinese operatives were involved. Would Americans tolerate having their election changed in that way? Would they say, there is nothing to be done about it because the ECA doesn’t provide a clear and unambiguous means for dealing with fraud? I don’t think so, and more importantly, I don’t think Jack Smith thinks so. That is why his schizophrenic indictment gives the impression that this is a simple federal matter of collecting, counting, and certifying electoral votes. Yet, Smith devotes most of the indictment to battling various allegations of state election fraud. He wants it both ways.

I have written extensively about fraud in the 2020 election, including a recent article and two books. I won’t repeat those findings here. However, for each of the six swing states I analyzed, which include all the ones highlighted in the indictment, it is very clear that evidence of possible fraud made those certifications premature. They did not necessarily reflect the true popular vote of the people.

Because this trial will probably take place in a D.C. courtroom, no one should assume that Trump and the co-defendants will be acquitted. However, there is a bright silver lining: The American people may finally get to hear why the 2020 election was improperly certified.

Joe Fried is an Ohio-based CPA who performed and reviewed hundreds of certified financial audits in his 40-year career. For more information concerning election matters, check out Debunked? and his new book called, How Elections are Stolen. More information can also be found at https://joefriedcpa.substack.com/.

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