Defendants ask judge to dismiss Arizona 'fake elector' case with trial slated to begin in 2026

PHOENIX — After three days of arguments and with a trial scheduled for Jan., 5, 2026, the decision of whether Arizona's "fake electors" case will move forward is now in Judge Bruce Cohen's hands.

Defendants argued over the course of 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 grounds that they were exercising their First Amendment rights.

Mark Williams, the attorney for former New York City Mayor and Trump lawyer Rudy Giuliani, addressed the judge on Tuesday. He argued the indictment was brought forth 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 the defendants face for engaging in fraud, forgeries and conspiracy were not related to their political speech or associations.

"Conspiracy itself not protected speech," argued prosecutor Nicholas Klingerman. "Yes, Mr. Giuliani had every right to hold a fake hearing at the Hilton on November 30 and say that 1000s 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 in the case include Guiliani; former 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 were charged with nine felony counts after an Arizona grand jury's April indictment. The indictment alleges the "fake electors" used "false or fraudulent pretenses" to keep Trump in office. It also alleges all 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 Ellis , have struck plea deals with the state and are cooperating with the prosecution. Yet many of 16 remaining defendants moved to dismiss the case under the state's "anti-SLAPP," or "strategic lawsuits against public participation," law. 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.

That expansion has given hope to some of the Arizona defendants. Earlier this week Eastman projected confidence outside the Maricopa County courthouse.

"Where I'm hoping it goes from here is that it's ultimately dismissed in fairly short order," said Eastman. "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 the 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 on Wednesday, Mayes pushed back on the claims made by Williams and other lawyers representing various defendants.

"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," said Mayes in a video statement.

Mayes also addressed the defendant's anti-SLAPP arguments.

"This case is not about the defendant's first amendment rights. The actions in question are not protected speech," she said. "The law draws a clear line between the expression and illegal conduct, and we believe the evidence shows that the defendants cross that line."

Mayes' term ends in 2027. If the trial does not take place as scheduled and she is not reelected, it is possible another attorney general would oversee — or even end — the prosecution.

Klingerman, the prosecutor representing the state, also dismissed the notion that the "fake electors" case is politically motivated while delivering his argument on Wednesday.

"How can you say this is illegitimate when an independent grand jury issued the indictment?" asked Klingerman.

The hearing, originally slated to last only one day, dragged on for three after at least a dozen defendants requested the case be dismissed. The protracted process led to more defendants and lawyers attending 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 purchasing 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 argument.