Their claim that “it was all just a backup plan” is unlikely to persuade prosecutors.
The claim that the phony electors were the “duly elected and qualified” electors from their respective states was blatantly false and almost certainly criminal under a wide range of state and federal laws. Given the obvious coordination between the five states, and the unmistakable evidence that the phony certificates were central to Trump’s plot to overturn the results of the 2020 election, following the facts as far as they go could bring criminal accountability not only to the pseudo-electors themselves, but also those higher in the chain of authority who induced, aided and abetted, or otherwise participated in the crime.
Right up to you-know-who.
The plan was to affirmatively use the phony certifications, not to file them away for a rainy day. The fake documents were to be the cause of rejecting the real documents, not the effect. The plan was set out in the clearest possible language in the infamous Eastman memo:
7 states have transmitted dual slates of electors to the President of the Senate.
At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe. . . . A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.
That’s not a contingency plan. That’s not something you stick in your back pocket in the unlikely event that a court might invalidate state election results.