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Invoking the Supreme Court sounds reasonable but isn’t. It’s like saying, “We’re gonna conspire to rob a bank and then appeal to the Supreme Court to see if it sides with us.” https://t.co/zFiPw5CZvt

— Jonathan Alter (@jonathanalter) January 2, 2023

On January 6th someone "pre-planted" bombs in the Capitol, which didn't explode so: no harm, no foul, right?

First, the conspiracy itself is a crime which the Supreme Court can't declare legal.  It can decide the conspiracy was not proven, or more properly, the wrong interpretation of a certain law was applied to particular actors.  But it can't decide that "crime" is not really, nor was ever, a "crime."  Not unless it decides that for all times and places the criminal statute in question is unconstitutional.  And the odds of even this Court doing that are zip and none.

Second, the act of creating "alternate electors" was, itself, a separate crime.  It's the underlying crime of the conspiracy.  

Now, generally, a conspiracy is an inchoate crime.  Consider the conspiracy to kidnap the governor of Michigan.  Obviously that never happened; so no crime, right?  Yes, there was: the conspiracy itself was the crime.  That it was thwarted by the FBI is successful law enforcement (though there's an argument that your criminalizing thought and speech, since the underlying crime of kidnapping never occurred).

But the underlying crime to this conspiracy was the alternate electors.  The Constitution not only doesn't allow for competing slates of electors (yes, it happens anyway, hence the Electoral Count Act of 1889), the law criminalizes attempts to bring "alternate electors" forward on no better basis than "our guy lost!"  That's not, obviously, a cogent legal analysis, but that's the set of facts present here.  The grounds for an alternate slate of electors was no more than Ginni Thomas had in telling Mark Meadows Biden would soon be on a barge off Gitmo awaiting a military tribunal (which somehow doesn't follow the Constitutional requirements of equal protection and due process? They just declare "Off with his head!"? Are we sure she's a lawyer?).  There was "fraud" because Ginni Thomas's preferred candidate lost the election.  That "fraud" justified false slates of electors because the state legislatures (which by and large had nothing to do with these fake elector schemes) were "closer to the vote."  Or something.

None of that justifies the actions of creating fake slates of electors and passing them off as legitimate.  That alone is a crime, and even the Supreme Court can't say "Well, this time it's fine because, after all, Trump should have won!"

I mean, arguably the Court could have done that.  But then we'd now be a banana republic, and not having this discussion.