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Michigan False Electors Prosecution Faces A Court Test


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On Wednesday, December 13, the first ”probable cause hearings” in the state criminal prosecution of Michigan’s fake electors will begin. These hearings will be an important opportunity for stakeholders in Michigan and nationally – including courts and law-enforcement officials – as well as the press and general public to understand the fake electors scheme that former President Donald Trump and his associates allegedly plotted. While the hearing will focus on events in and relating to Michigan, the alleged scheme encompassed six other states, and ultimately targeted the January 6 meeting of Congress. We can accordingly expect to derive information and insights relevant in Michigan and beyond.

In this piece we explain the facts of the Michigan scheme, and summarize the charges and applicable law, including for the probable cause hearing. Such hearings are serious matters in Michigan and should not be viewed as trivial. We explain why the Attorney General is poised for success here and has a strong case at trial. We also discuss the out-of-state and national import of the Michigan prosecutions.

Timeline of the Michigan Fake Electors Scheme

1. After a high-profile meeting with President Trump on Nov. 20, 2020, Michigan’s two legislative leaders (both Republicans) released a statement saying they “have not yet been made aware of any information that would change the outcome of the election” and they would “follow the normal process regarding Michigan’s electors.” They refused to take steps to decertify Biden’s lawful electors.

President Trump invited Michigan Senate Majority Leader Mike Shirkey and Speaker of the House Lee Chatfield for a meeting at the White House on Nov. 20, 2020. The House Select Committee to Investigate the January 6th Attack on the U.S. Capitol asked both Shirkey and Chatfield about the meeting. Shirkey explained that when President Trump made baseless claims of election fraud in Wayne County, Michigan, Shirkey responded by explaining that Trump’s loss had nothing to do with Wayne County – as the president actually did better there in 2020 than in 2016. The January 6th Committee’s final report explains what happened next:

From the President’s body language, Shirkey concluded that wasn’t what he wanted to hear. But the meeting continued, and the President dialed in Giuliani, who delivered a “long monologue,” reciting a “litany” of allegations about supposed fraud that was short on substance. Shirkey challenged Giuliani, asking “when are you going to . . . file a lawsuit in Michigan,” which he said Giuliani did not answer. Although Shirkey says he did not recall the President making any precise “ask,” Chatfield recalled President Trump’s more generic directive for the group to “have some backbone and do the right thing.” Chatfield understood that to mean they should investigate claims of fraud and overturn the election by naming electors for President Trump. Shirkey told the President that he was not going to do anything that would violate Michigan law. (footnotes omitted)

After the meeting, Shirkey and Chatfield released a statement that read:

 “…We have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election.

Michigan’s certification process should be a deliberate process free from threats and intimidation. Allegations of fraudulent behavior should be taken seriously, thoroughly investigated, and if proven, prosecuted to the full extent of the law. And the candidates who win the most votes win elections and Michigan’s electoral votes. These are simple truths that should provide confidence in our elections.”

On Twitter, President Trump responded to their statement by claiming, “We will show massive and unprecedented fraud!” However, neither Trump, nor anyone else, demonstrated any significant fraud in the weeks that followed. Shirkey and Chatfield also did not change their views. But that was not the end of Trump’s pressure campaign. As the January 6th Select Committee learned, “Chatfield and Shirkey received numerous calls from the President in the weeks following the election.” Trump repeatedly pressed bogus claims of election fraud.

2. During a hearing held by Michigan’s House Oversight Committee on Dec. 2, 2020, Rudy Giuliani and Jenna Ellis pressed the state legislature to decertify Joe Biden’s victory and appoint Trump’s electors.

Prior to the hearing, Giuliani told an online audience that there’s “nothing wrong with putting pressure on your state legislators” to pick new electors. During the hearing, Giuliani implored the state legislature to “have the courage to say that certification that was done by your state is a complete phony.” Giuliani argued that the state legislature could determine the election’s result “anytime you want to. Anytime. You can take it back tonight.” He added, “You can take it back the day before the electors go down to Washington.” Jenna Ellis, an attorney who was working with Giuliani (and who has pleaded guilty in the Georgia state case), echoed his claims. “What the Constitution obligates you to do is to take back your plenary power because the certification was false, clearly,” Ellis claimed. She added: “And you can do that and you should do that because you have an obligation as state legislators.”

That same day, the Trump campaign sent an email to Republican lawmakers in Michigan, encouraging them to pass a joint resolution to “allow Michigan to send electors for Donald J Trump to the Electoral College and save our country.”

3. On Dec. 7, 2020, a U.S. District Judge rejected a lawsuit brought by three of the people who would serve as fake electors one week later. The judge wrote that the plaintiffs sought to “ignore the will of millions of voters” and the “People have spoken.” The fake electors knew, or should have known, that their votes had no legal basis.

In late Nov. 2020, six Plaintiffs filed a lawsuit seeking to overturn the election’s results in Michigan. Three of the six Plaintiffs – Timothy King, Marian Sheridan and John Haggard – signed the fake electoral documents on Dec. 14, 2020. As relief, the plaintiffs asked the court to force Michigan’s Governor and Secretary of State to decertify the election’s results and prevent them from transmitting Biden’s certified votes to the Electoral College. The plaintiffs also sought to force the Governor and the Secretary of State “to transmit certified election results that state that President Donald Trump is the winner of the election,” among other proposed remedies.

On Dec. 7, one week before the fake electoral votes were cast, District Judge Linda V. Parker rejected their lawsuit. Judge Parker wrote that the deadline for plaintiffs to challenge the election’s results under Michigan Election Code “has passed,” adding that “[a]ny avenue for this Court to provide meaningful relief has been foreclosed.” The district court described the plaintiffs’ request as “stunning in its scope and breathtaking in its reach.” Judge Parker added: “Plaintiffs ask this Court to ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters. This, the Court cannot, and will not, do. The People have spoken.”

4. On Dec. 7, 2020, Rudy Giuliani pressed Michigan Senate Majority Leader Mike Shirkey to pass a joint resolution declaring that Biden’s electors were “not the official Electors of the State of Michigan.” That was a lie. And Shirkey did not comply.  

According to the federal indictment of Trump, on Dec. 7, Giuliani sent a text message to Shirkey that read: 

“So I need you to pass a joint resolution from the Michigan legislature that states that, * the election is in dispute, * there’s an ongoing investigation by the Legislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State of Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.”

In the federal indictment charging Trump with election interference, Special Counsel Jack Smith notes that Giuliani sent this text message “despite still having established no fraud in Michigan.”

5. In a Dec. 9 memo, Chesebro admitted that the fake electors scheme was “slightly problematic” in Michigan, because state law required the “alternate electors” to meet and cast their votes in the state senate.

In a Dec. 9 memo, Chesebro admitted the fake electors scheme was “slightly problematic” in Michigan because it “require[ed] access to the senate chamber.” Citing the “relevant provisions of Michigan law” (§§168.41& 168.47), Chesebro wrote that Michigan “is much more specific about the location in which electors must meet, which could be a bit awkward.” Chesebro noted that §168.41 stipulates that the electors “shall convene in the senate chamber at the capitol of the state at 2p.m., eastern standard time….” He then argued that there was “no requirement that they convene on the senate floor where, presumably, the Biden-Harris electors will convene,” so “[p]resumably” the fake electors “could convene in the senate gallery.”

6. On Dec. 14, 2020, prior to both the real and the fake electors voting, Michigan’s top legislative leaders (both Republicans) issued statements that they had “not received evidence of fraud on a scale that would change the outcome of the election in Michigan” and “there is not enough support in the [Michigan] House to cast a new slate of electors.” Both Republicans emphasized that Biden’s electors were the lawful electors for the state of Michigan.

As explained above, Michigan Senate Majority Leader Mike Shirkey and Speaker of the House Lee Chatfield publicly refuted baseless allegations of election fraud after a meeting with President Trump in the White House. Weeks later, they continued to explain in  public statements that there was no basis for asserting that fraud had affected the outcome or that Trump’s electors would be appointed by Michigan’s state legislature.

Prior to the electors convening on Dec. 14, Shirkey released a statement explaining that “numerous claims of fraud have been independently investigated, and in each instance, the claim is either found to be incorrect or incapable of being proven.” Shirkey emphasized, “we have not received evidence of fraud on a scale that would change the outcome of the election in Michigan.” Shirkey made it clear that Biden’s electors were the lawful electors for the state of Michigan:

“Michigan’s Democratic slate of electors should be able to proceed with their duty, free from threats of violence and intimidation.  President-elect Biden and Vice President-elect Harris won Michigan’s presidential election.  It [sic] our responsibility as leaders to follow the law and move forward in pursuit of policies that contribute to the betterment of Michigan.”

Similarly, Chatfield’s statement read (emphasis added):

“I fought hard for President Trump. Nobody wanted him to win more than me. I think he’s done an incredible job. But I love our republic, too. I can’t fathom risking our norms, traditions and institutions to pass a resolution retroactively changing the electors for Trump, simply because some think there may have been enough widespread fraud to give him the win. That’s unprecedented for good reason. And that’s why there is not enough support in the House to cast a new slate of electors. I fear we’d lose our country forever. This truly would bring mutually assured destruction for every future election in regards to the Electoral College. And I can’t stand for that. I won’t. I know this isn’t the outcome some want. It isn’t what I want, either. But we have a republic if we can keep it. And I intend to.”

As both Republican leaders emphasized, they feared that any effort to decertify Biden’s legitimate victory would undermine the law and America’s democracy. Regardless, the fake electors cast their ballots that same day.

7. On Dec. 14, 2020, the Michigan fake electors claimed they “were duly elected and qualified,” but that was obviously not true.

The fake electoral votes for Michigan state that the undersigned are “the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Michigan.” But the fake electors had no basis for making this assertion. (Note: The fake electors in the neighboring state of Wisconsin have recently admitted in a statement submitted to state and federal authorities, “we were not the duly elected presidential electors;” they did so as part of an agreement pursuant to a civil settlement.) Joe Biden won the popular vote in Michigan and, as in other states, the winner of the popular vote receives Michigan’s electors. Biden’s victory was certified by Michigan’s State Board of Canvassers on Nov. 23, 2020. And there was no real dispute about the vote count in the weeks that followed. For example, there were no ongoing recounts. Biden won the state by more than 154,000 votes.

As demonstrated above, it was also clear that neither the courts, nor the Michigan state legislature, was going to appoint or certify the Trump electors. And the fake electoral votes for Michigan did not contain language making the votes contingent on a court ruling or state legislature appointment anyway. In contrast, the fake electoral documents for New Mexico and Pennsylvania made it clear that the electors’ votes would only be valid if they were made lawful by other events, such as the Trump campaign winning election litigation. The fake electoral votes for Michigan contained no such contingency, making it appear as if they were genuine upon signing.

8. The fake electors asserted that they had convened in the State Capitol. But that was an obvious lie, which was intended to make it appear as if they had voted in compliance with state law.

The fake electoral votes for Michigan state: “That we convened and organized in the State Capitol, in the City of Lansing, Michigan.” But that was an obvious falsehood. As explained above, Ken Chesebro declared in his Dec. 9 memo that the “alternate” electors’ votes were “slightly problematic” in Michigan because they electors were required to convene in the state senate. The fake electors were reportedly aware of this fact. Indeed, the fake electors considered hiding in the Michigan State Capitol overnight so that they could appear to be in compliance with election law. When the fake electors failed to gain access to the State Capitol, they met and cast their votes at the GOP’s campaign headquarters.  Despite failing to gain access to the State Capitol, the fake electors still signed a document making it appear as if they had convened there. 

The Charges and Applicable Law

On July 18, 2023, Michigan Attorney General Dana Nessel charged 16 individuals involved in the state’s 2020 fake electors scheme with eight felonies. In charging the case and in announcing the charges, the Office of the Attorney General (OAG) described how the defendants signed their names to multiple certificates that falsely stated they were duly elected and qualified presidential electors, and then sent the false documents to the United States Senate and National Archives in order to award Michigan’s election to Trump.

Each defendant faces two counts of forgery (plus one count of conspiracy to commit forgery), one count of uttering and publishing (plus one count of conspiracy to commit uttering and publishing), and two counts of election law forgery (plus one count of conspiracy to commit election law forgery). The forgery and uttering and publishing counts (including conspiracies) each carry a maximum penalty of fourteen years, and the election law forgery counts each have a five-year maximum, but the sentences imposed could certainly be lower than those statutory maximums.

The charges are overlapping and very similar. The forgery and election forgery counts are essentially the same, with the one difference being that the false document was in connection with an election. Although the criminal complaint does not specify, presumably the two forgery and two election forgery counts are for the two, identical vote certificates that each of the 16 defendants signed representing that on December 14, 2020, they certified Michigan’s electoral votes for Trump and Pence. The uttering and publishing count deals with the transmission of a false document, and it presumably covers the electors sending the fake vote certificates to the Senate and National Archives. The conspiracy counts require an agreement to commit the underlying crime—there is no overt act required under Michigan law—and it is obvious that the three conspiracy charges address the defendants agreeing with one another to falsify and send the false vote certificates.

One common element to all the charges is intent to defraud. The OAG characterized the defendants’ intent as “the desperate effort of … deliberately attempting to interfere with and overturn our free and fair election process, and along with it, the will of millions of Michigan voters.” Whether the OAG is able to prove each defendant’s intent to defraud will be the pivotal issue in the entire case.

The December 13-14 and January 30-31 Hearings

On October 19, 2023, one defendant reached a cooperation deal with the OAG that resulted in his charges being dropped, leaving 15 remaining defendants. Preliminary examinations are scheduled for December 13-14 for seven defendants, with five others set for January 30-31, 2024. For the remaining three defendants, preliminary examinations are not yet calendared.

In Michigan, the preliminary examination is a probable cause hearing intended to ensure there is evidence to support the charges. As with most state crimes, these charges were filed by a felony complaint, which is a sworn statement of the facts by the prosecutor, as opposed to the charges being filed by a grand jury indictment. Because there was no independent grand jury to determine probable cause, the preliminary examination allows for a judge to make that determination in order for the case to proceed. Establishing probable cause is a relatively low bar, but the preliminary examination is the first meaningful opportunity for a defendant to hear specific evidence and challenge the basis for the charges before trial, which is often months or even years away. Michigan courts take these hearings seriously, and while the standard is a low one that the OAG will easily meet, the court will expect a professional and strong showing.

Evidence of Intent to Defraud

Broadly conceived, the national fake electors scheme was a part of a tangled web of allegedly spreading election lies, planning to corrupt the Justice Department, pressuring state officials, and trying to manipulate the authorities of the President of the Senate that stretched from low-level local party operatives around the country all the way up to the Oval Office. The Michigan prosecution covers one, relatively narrow state-based aspect of the overall plot, and the OAG does not have to establish the national scheme in order to prove its case. Instead, the OAG can highlight four evidentiary arguments that establish the defendants’ intent to defraud.

Evidentiary Argument #1

The defendants knew there was no lawful basis to certify Trump as the winner of the election because the Michigan legislature had refused to decertify Biden’s lawful electors.

There were only two possible legal avenues to overturning Biden’s election win: the state legislature or the courts. Both avenues were shut. Michigan Senate Majority Leader Shirkey and House Speaker Chatfield publicly stated that there was no fraud that justified changing the outcome of the election and that they would “follow the normal process” regarding Michigan’s electors. Even after Trump publicly pressured them by claiming there was massive fraud, Shirkey and Chatfield did not change their position. Shirkey and Chatfield’s public statements are strong circumstantial evidence that the defendants knew the legislature was not going to intervene to decertify the election, and the OAG may be able to point to additional evidence directly establishing that some or all of the defendants discussed or had knowledge of the legislature’s intent to certify Biden as the winner.

Evidentiary Argument #2

The defendants knew that there was no lawful basis to certify Trump as the winner because a court had rejected a lawsuit filed by three of the 16 fake electors.

Judge Parker’s December 7 order clearly and unequivocally said that the deadline to challenge the election had expired and that the issue was moot. The order also said that the plaintiffs were asking the court to “ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters. This, the Court cannot, and will not, do. The People have spoken.”

The dismissal of the lawsuit establishes that defendants King, Sheridan, and Haggard—who were three of the six plaintiffs—knew there was no basis to sign and submit the vote certification for Trump, and it is strong circumstantial evidence against the other defendants.

Evidentiary Argument #3

The defendants lied in averring that they had convened in the State Capitol as the law required.  

In her testimony before Congress, defendant Mayra Rodroguez confirmed the fake electors met in the basement of the GOP headquarters building, but they signed the vote certificates expressly stating they had met in the Capitol. Furthermore, according to congressional testimony from Laura Cox, the state Republican Party chairwoman at the time, the group originally planned to meet inside the Capitol and hide overnight, so they could vote in the building the following day. However, Ms. Cox testified she told a lawyer working with the fake electors “in no uncertain terms that that was insane and inappropriate” and “a very, very bad idea and potentially illegal.”

This evidence establishes the defendants knew they were required to meet in the Capitol, fashioned a plan to do so, met elsewhere, but then signed the vote certificates knowing they misrepresented the meeting location. This intentional false and misleading statement is powerful evidence of intent to defraud. This lie undermines any claim of good faith.

Evidentiary Argument #4

The Michigan fake electoral certificates did not contain a disclaimer that they were conditioned on a court ruling or some other legal justification for changing the election results to Trump.

Two states where the fake elector scheme was executed included disclaimers on the vote certificates. Pennsylvania’s vote certificate stated, “on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors ….” Similarly, New Mexico’s certificate read, “We, the undersigned, on the understanding that it might later be determined that we are the duly elected and qualified Electors ….”  Michigan’s certificate had no such proviso, which makes it harder for the defendants to claim that they were not intending to defraud anyone when they signed a document purporting to be the duly elected and qualified electors. Additionally, Ms. Cox testified that she was “very uncomfortable” with the Michigan Republican electors plan “as per my lawyers’ opinion as well.” She testified that “we came up with a document” that included contingency language (“stating that if perhaps something were to happen in the courts, they were willing and able to serve as electors from Michigan for Donald Trump”; and she advised an individual from the Trump campaign working with the fake electors that the certificate should include language to make clear their role as electors was contingent on a court ruling. The contingency language was not added to the fake Michigan electoral votes.

The Defense Argument: We Were Duped

The OAG should have little trouble establishing probable cause that the defendants committed the charged crimes, a relatively low bar, at the upcoming hearings. At trial, however, proving guilt beyond a reasonable doubt will be a more difficult task. Perhaps the strongest defense will be that the defendants were duped into serving as the fake electors. The original 16 defendants have a mix of political backgrounds, “rang[ing] from high-profile party activists to a local mayor, a clerk, grassroot organizer and a heralded dairy farmer. They are a mostly older group — two are in their 80s, six others in their 70s.” 

James Renner, the one initial defendant who struck the deal to cooperate in return for having his charges dismissed, reportedly said during his interview with investigators that the group was “led to believe” they were signing the vote certificates as a contingency in case the Michigan legislature or the courts overturned Biden’s victory in the state. One of the defendants publicly said she signed a “blank sheet of paper” and did not know it was an elector document. Other defendants, however, have made statements to the contrary: one said he knew he was signing as an elector but did not read the document; another claimed that the signatories were “duly elected Trump electors.” 

The prosecutors will have to overcome claims that the fake electors relied on representations from the Trump campaign that what they were doing was proper, including claims that the plan was approved by Trump’s lawyers. And the OAG cannot simply prove that the 16 fake electors as a group knew what they were doing was wrong. Instead, it will have to establish evidence against each defendant, being able to prove beyond a reasonable doubt the individual defendant’s particular intent to defraud. 

We believe this standard can be met, including by the OAG presenting evidence along the same four parameters we outline above. That said, we are obviously not privy to any exculpatory (or inculpatory) evidence that is not publicly available, which could change this assessment. We know that unlike in some other states, each Michigan fake elector signed a piece of paper with an objectively false statement about the location where they met. Even a non-lawyer understands the difference between meeting in the State Capitol and the basement of the state party headquarters. It would be unjust for Michigan to prosecute other ordinary folks who make false written statements of various kinds and to look the other way when it comes to presidential electors. The Attorney General has already secured cooperation from one of the fake electors, and others would be well advised to follow suit.

The Impact on Other Prosecutions

The Michigan prosecution is an important complement to other investigations and prosecutions of those who orchestrated and perpetrated the scheme to obstruct the peaceful transfer of power following Biden’s 2020 victory. As Attorney General Nessel said after the charges were announced, “The false electors’ actions undermined the public’s faith in the integrity of our elections and, we believe, also plainly violated the laws by which we administer our elections in Michigan.”

The OAG has a clear duty to vigorously and fairly prosecute the 16 defendants and any other individuals involved in order to hold accountable everyone who committed a crime in connection with the Michigan fake elector scheme. This prosecution synthesizes with efforts in Nevada, Arizona, and Georgia, as well as Trump’s federal case in D.C. in connection with January 6 because it seeks to hold accountable those responsible within Michigan for alleged wrongdoing in Michigan. Nevada has taken a similar approach, charging fake electors in Nevada for their actions in that state. Other federal and state investigations and prosecutions including that of Special Counsel Jack Smith and Fulton County DA Fani Willis have focused on those responsible at the top of the insurrection pyramid. Smith has charged the alleged mastermind, Trump, and Willis has cast a broad net including Trump, his Chief of Staff Mark Meadows, senior Justice Department official Jeffrey Clark, and several of Trump’s lawyers, such as Rudy Giuliani, Sidney Powell, Jenna Ellis, and Kenneth Chesebro (the latter three of whom have all pleaded guilty). Willis has also charged some, but not all, of the Georgia fake electors and other in-state actors.

There is a path to holding both the ringleaders and the foot soldiers criminally accountable, but it requires prosecutors to understand how their own case fits into the overarching, national plot to overturn the legitimate results of the presidential election. Chesebro has emerged as a critical figure in doing that, owing to his role as “a chief architect” in the fake electors scheme, and after pleading guilty in Georgia to conspiracy to file false documents. He has reportedly met with or is scheduled to meet with prosecutors in Arizona, Nevada, Wisconsin, and Georgia.

Chesebro’s own writings establish that his ultimate goal was to interfere with the certification of the election for Biden, and he is believed to be the person identified as co-conspirator 5 in the federal election interference indictment against Trump. That indictment describes “an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” 

Proving that Trump and his senior advisors conspired to illegally overthrow the election presents its own obstacles. Proving that a Michigan dairy farmer and other local grassroots activists did so has a different set of challenges. Whether Chesebro himself will testify credibly, his considerable corpus of writings provides a framework for fitting individual prosecutions like those in Michigan into the larger national scheme.

Photo credit: One of the alleged fake electors, Amy Facchinello (L), is arraigned via Zoom in Ingham County District Court on August 10, 2023 in Lansing, Michigan (Bill Pugliano/Getty Images)

 

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