Florida Governor Ron DeSantis recently appointed Cord Byrd, a Q-Anon conspiracy theorist and ardent Trump loyalist to be Florida's Secretary of State, where he will be responsible for overseeing the state's upcoming elections. The response to Byrd's appointment on social media was swift, with many (including this author) immediately suspecting that Byrd was appointed due to his willingness to act as an "election fixer" for the Republican Party, promoting policies and engaging in acts that would guarantee Republican victories in the state at all levels of government. It's normal for voters to be suspicious of the appointment of a MAGA extremist to a position overseeing elections shortly before a mid-term election where the Republican Governor and his fellow Republican Marco Rubio will both be on the ballot. It's quite clear that when someone like Donald Trump says that a candidate "stands for election integrity", he means that candidate will do whatever is necessary to ensure that Trump, and his loyalists are elected. Modern day Republicans have grown openly hostile to the idea of "one person, one vote", and given Byrd's record of erratic behavior, there is no reason to believe that if a Republican candidate called him and asked him to "find" extra votes (as Trump did with Secretary of State Brad Raffensperger) that Byrd would refuse the request.
It appears that many in the Republican Party are currently engaged in a gamble: they are betting that the slow pace of the Federal Court system, friendly rulings from Federalist Society judges that necessitate multiple appeals to higher courts, and a Department of Justice that has demonstrated an extreme degree of caution and no real sense of urgency will ensure that Republicans can basically engage in any criminal behavior they like to help ensure that they win a Congressional majority in 2022 and the White House in 2024, and then count on a Republican President who will appoint an Attorney General who -like former White House legal fixer Bill Barr- will immediately drop all charges against Republican officials, and sweep the results of any pending investigations under the rug.
The standard for "probable cause" in an investigation is "a reasonable belief that a crime has been committed". The sudden resignation of a sitting secretary of state shortly before a round of state and Federal Elections naturally raises suspicion; especially when the person appointed to replace her is a political extremist who has a history of promoting Donald Trump's "big lie" about the 2020 Presidential election being stolen. Cord Byrd also has a history of offensive and erratic behavior during his time in the Florida House, including incidents where he has openly insulted and shouted profanities at fellow House members. Other Florida House members have called Byrd an eccentric, and someone who is unfit for office, so the idea that he would be promoted to Secretary of State is quite unusual.
18 U.S. Code § 599 - Promise of appointment by candidate, states that "Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both." In this case, there is widespread suspicion that Ron DeSantis violated this section of Federal Law by appointing Byrd as Florida Secretary of State in exchange for a promise by Cord that he would act as the Republican Party's "election fixer", adopting policies and practices that would help to diminish Democratic and Minority voter turnout, and even "finding votes" for Republican candidates, should that become necessary. Conviction on this section would require that the prosecutor be able to show, through evidence and testimony developed during cross-examination that Cord Byrd and Ron DeSantis had an agreement in place that Byrd would use the authority of the office of the Florida Secretary of State to ensure the election of Republican candidates to key State and Federal offices. This agreement should be characterized as a "meeting of the minds" between the two men, and prosecutors should ask numerous follow ups such as "what was your impression of that conversation, what did you feel the governor was asking of you," or "what benefit did you believe you could derive from appointing Mister Byrd as Florida Secretary of State?" The prosecutor would also need to be a bulldog when the two resort to ambiguous phrasing like "protecting our elections" or "ensuring election integrity," which can mean very different things to different people. Proof of consummation of that agreement by any action subsequent to Cord's appointment is not necessary for conviction under this section, the fact that an agreement was made, and Cord was appointed, is sufficient grounds for conviction. Because this prosecution is contingent upon showing that a conspiratorial agreement existed between Byrd and DeSantis,
it is also possible that they could be prosecuted under 18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States, which makes it a crime to engage in any action that undermines the government's ability to perform functions in a "reasonable, fair and impartial manner". In that case, prosecutors would have the same goal of showing that there was conspiratorial intent, where Byrd and DeSantis had a "meeting of the minds" and a shared purpose of ensuring election results that satisfied their partisan political interests.
Proof of consummation of that agreement would be grounds for conviction under 18 U.S. Code § 595 - Interference by administrative employees of Federal, State, or Territorial Governments. That section states: "Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both." Conviction under this section would require showing proof that Cord, in honoring the agreement that led to his appointment be Florida Governor Ron DeSantis, engaged in actions that constituted the willful disposal of votes, or other behaviors that were specifically intended to deny individuals of their right to the franchise for the purpose of ensuring that only Republican candidates are elected to key Federal offices. There is a complication in this section in that it would only apply to manipulation of votes cast for Federal Offices, so conviction would require that the agreement extended not just to election fixing on DeSantis's behalf, but also on behalf of Senator Marco Rubio, or Republicans who represent Florida Districts in the House of Representatives.
Naturally, the Federal Charges listed above would be in addition to state level charges, however, given the Republican Party's domination of Florida State politics, it seems highly unlikely that either Byrd or DeSantis's crimes would be punished at the state court level, no matter how blatant those crimes are. Hopefully, the Civil Rights division of the Justice Department already has their eye on the state of Florida, and will soon be investigating both Byrd and DeSantis over this matter. We'll also need to hope that the Department of Justice can pick up the case on its current proceedings, to avoid having this case dropped by order of a new Republican Attorney General, before either Byrd or DeSantis face any criminal penalties.
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Image Credit: Gage Skidmore from Peoria, AZ, United States of America, CC BY-SA 2.0 <https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons
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