State fires back at Peters’ jurisdiction challenge, rejects pardon and supremacy claims

By Jen Schumann | Rocky Mountain Voice

Fifteen months after Tina Peters was taken into custody at sentencing, and as she marks a second New Year behind bars, Colorado’s Attorney General moved to answer her latest court filing, pushing back on a motion that asks the Court of Appeals to decide whether it even has jurisdiction to proceed.

Filed Monday afternoon on Jan. 5, the 23-page brief from Senior Assistant Attorneys General Nora Passamaneck and Lisa K. Michaels argues that President Trump’s pardon holds no sway over Peters’ state convictions—and that the Colorado Court of Appeals should press forward with her appeal without missing a beat.

This latest filing comes on the heels of Peters’ Dec. 23 motion, which RMV covered in detail.

Citing the pardon and Supremacy Clause protections, they portrayed Peters as fulfilling federal duties to preserve election records. The AG’s team counters that these arguments do not hold, based on established law and historical practice.

What the court must decide about the pardon

What the court is being asked to decide is whether Trump’s Dec. 5, pardon—explicitly forgiving Peters for “offenses… related to election integrity and security” from 2020-2021—can erase her nine-year sentence. 

Peters’ team contends it can, advancing an interpretation that “Offences against the United States” in Article II, Section 2 of the Constitution could encompass state crimes with national implications.

The state takes the position that presidential pardons stop at federal offenses. In its filing, the Attorney General’s Office points to long-standing case law, including Young v. United States, arguing that if an act is not an “offence against the United States,” the president lacks authority to pardon it. 

From there, the response leans on the doctrine of dual sovereignty, maintaining that states retain independent control over their own criminal laws, even when federal interests are also in play, as recognized in Gamble v. United States.

Among several arguments, Peters’ attorneys pointed to President Trump’s Nov. 2025 proclamation, which extended pardons to dozens connected to post-2020 election challenges, from “alternate electors” like Kathy Berden to lawyers including Christina Bobb and Sidney Powell. They argue this covers Peters’ actions. 

The AG argues those proclamations do not reach state convictions.

How a centuries-old revolt entered the appeal

The exchange turns particularly contentious on the 1794 Whiskey Rebellion. Peters’ motion cites it as evidence presidents can pardon state crimes, pointing to George Washington’s 1795 proclamation forgiving rebels. Her attorneys argue it included state offenses like arson and theft, supporting a “federal interest” exception.

The Attorney General’s Office answers with a detailed rebuttal, including a seven-page appendix drawn from the Pennsylvania Archives. 

In the state’s telling, George Washington’s pardon reached only “offenses against the United States,” meaning federal violations. Separate state crimes, the response notes, were addressed by Pennsylvania Gov. Thomas Mifflin, who issued his own pardon in the interest of what he described as preserving uniformity.

Testing the Supremacy Clause claim

Peters revived her Supremacy Clause claim, arguing her actions—imaging Mesa County’s election systems ahead of a 2021 update—were required by federal law (52 U.S.C. § 20701) to preserve records. 

As an election officer, she contends state prosecution conflicts with federal supremacy.

The AG counters that this claim does not deprive the court of jurisdiction—it’s a waivable defense. Citing Colorado’s Wood v. People, they note such claims are non-jurisdictional.

They say Peters’ tactics exceeded federal duty. “Ms. Peters could have merely allowed the election server to be copied before and after the Trusted Build without deceiving state and other county employees,” the response states, and that “the appellate record contains no evidence, or even allegation, that she kept the forensic copies or sent them to the federal government.” The response further argues the copies were provided to a private individual, not to federal authorities.

When safeguarding election records became a legal flashpoint

As courts weigh jurisdiction, the case draws comparisons to other efforts to safeguard 2020 data. From Michigan’s Antrim County to Georgia’s Coffee County breach, clerks and auditors faced scrutiny for actions aimed at exposing alleged Dominion vulnerabilities. 

Defense attorneys and supporters point to these as evidence Peters operated in an environment where state officials quickly challenged preservation attempts.

In Michigan’s Antrim, forensics uncovered remote logons and foreign IPs—findings supporters say mirror Peters’ claims. By 2025, courts adjusted rules on “unauthorized possession,” denying defenses.

Georgia’s Curling case, dismissed in 2025, featured Halderman’s report on flaws like malware risks.

Excerpt from cybersecurity expert J. Alex Halderman’s principal findings, outlining vulnerabilities identified in Georgia’s voting systems.

The 2021 Coffee breach—Trump allies copying data—informed CISA advisories, despite RICO charges.

Arizona’s Maricopa audit raised deletion claims. Biden-era DOJ subpoenas probed funding, but brought no charges.

Closer to home, Elbert County’s Dallas Schroeder imaged his drives in 2021 for similar reasons: erasure fears during the Trusted Build, and software accreditation concerns. 

Former Elbert County Clerk Dallas Schroeder’s sworn statement on imaging election drives before the 2021 Trusted Build to protect 2020 records.

Secretary of State Jena Griswold subpoenaed him, sued for enforcement, took possession of his data and appointed a supervisor for Elbert’s 2022 primary—labeling it a “breach” but noting no imminent risk. Yet Schroeder faced no charges—unlike Peters.

Supporters highlight the disparity: Both clerks cited federal retention duties, but outcomes split. 

Griswold’s actions against Schroeder echoed her moves on Peters. Schroeder, now commissioner, serves without further action, while Peters fights from behind bars.

These comparisons, raised by the defense and supporters, do not establish fraud but illustrate the scrutiny clerks encountered when seeking to preserve records.

What happens next remains in the court’s hands. Peters’ attorneys must file a reply by Jan. 8. Oral arguments are scheduled for Jan. 14. The judges could deny the motion before arguments, allowing Peters’ appeal to continue on the merits. Or the court could address jurisdiction in light of the presidential pardon first.