PHOENIX — After three days of arguments and with a trial scheduled for Jan. 5, 2026, the decision about whether Arizona's "fake electors" case will move forward is in Maricopa County Superior Court Judge Bruce Cohen’s hands.
Defendants argued over Monday and Tuesday that the indictment against 11 people who signed documents claiming to be Arizona's Electoral College electors in 2020 — even though Joe Biden won the state and Arizona certified his victory — and other Donald Trump allies should be dismissed on the grounds that they were exercising their First Amendment rights.
Mark Williams, the attorney for former Trump lawyer Rudy Giuliani, told Cohen on Tuesday that the indictment was brought to "deprive my client of his right of freedom of speech, freedom to associate, freedom to petition the government for political redress."
"These things are not illegal," Williams added.
On Wednesday, the state defended its case, arguing the charges of engaging in fraud, forgeries and conspiracy were not related to the defendants’ political speech or associations.
"Conspiracy itself not protected speech," prosecutor Nicholas Klingerman said. "Yes, Mr. Giuliani had every right to hold a fake hearing at the Hilton on Nov. 30 and say that thousands of people in Arizona fraudulently voted in the election. But what he did not have the right to do was use was make those statements with intent to commit a fraud, and that's what he's charged with."
In addition to the alleged "fake electors," the defendants are Giuliani; Trump White House chief of staff Mark Meadows; former Trump campaign attorney Christina Bobb; former Trump attorneys John Eastman, Boris Epshteyn and Jenna Ellis; and Trump’s director of Election Day operations, Michael Roman.
Each of the 18 defendants was charged with nine felony counts after a grand jury returned an indictment in April. The indictment alleges the "fake electors" used “false or fraudulent pretenses” to keep Trump in office. It also alleges all of the defendants conspired in a “scheme” that “would have deprived Arizona voters of their right to vote and have their votes counted.”
Two defendants, including Eillis, have struck plea deals with the state and are cooperating with the prosecution. Many of 16 remaining defendants moved to dismiss the case under the state’s law against “anti-SLAPP” cases, or “strategic lawsuits against public participation.” While many states have similar statutes, which are designed to protect those exercising their speech rights from abusive litigation, Arizona’s Legislature expanded its law in 2022 to apply to criminal as well as civil cases.
The expansion has given hope to some of the Arizona defendants. Eastman projected confidence this week outside the courthouse.
“Where I’m hoping it goes from here is that it’s ultimately dismissed in fairly short order,” he said. “I think Arizona’s anti-SLAPP statute’s application to criminal prosecutions is a novel development in the law in this country, and I think Judge Cohen properly understands the significance of that.”
Other defendants argued that Attorney General Kris Mayes, a Democrat who brought the case, has pursued it solely for political aims.
“In the streets of Arizona, all the time, all over the place … there are bumper stickers, ‘vote for Trump,’ ‘vote for Trump.’ Everybody’s saying that, and that’s scary for Ms. Mayes,” said Williams, Giuliani's attorney. “It is a conspiracy on their part to deprive Mr. Giuliani and the other co-defendants of their right to petition the government.”
After court wrapped Wednesday, Mayes pushed back against the claims made by Williams and other defendants' lawyers.
“Let me be clear: The indictments in this case were not politically motivated. They were the result of a thorough, lengthy and professional investigation carried out by experienced and dedicated law enforcement officers and prosecutors,” she said in a video statement.
Mayes also addressed the defendants’ anti-SLAPP arguments.
“This case is not about the defendants’ First Amendment rights. The actions in question are not protected speech," she said. "The law draws a clear line between free expression and illegal conduct, and we believe the evidence shows that the defendants crossed that line."
Mayes’ term ends in 2027. If the trial does not take place as scheduled and she is not re-elected, it is possible another attorney general would oversee — or even end — the prosecution.
Klingerman, the prosecutor, also dismissed the notion that the case is politically motivated in his argument Wednesday.
“How can you say this is illegitimate when an independent grand jury issued the indictment?” he asked.
The hearing, originally scheduled to last only one day, dragged on for three after at least a dozen defendants requested that the case be dismissed. The protracted process led more defendants and lawyers to attend the hearings virtually as each day went by, which led to interruptions.
On Tuesday, Bobb's lawyer, Thomas Jacobs, turned on his camera to reveal he was attending virtually from his boat. On Wednesday, one of the virtual attendees mistakenly unmuted while buying birdseed.
After Klingerman offered the prosecution’s rebuttal, arguing that the case should not be dismissed, Cohen gave the defendants until Sept. 6 to submit a five-page document to respond to the prosecution’s arguments.
