Special Counsel Jack Smith has concluded that he can prove that several private lawyers acted as co-conspirators in former President Donald Trump’s criminal effort to overturn the legitimate results of the 2020 presidential election. That conclusion, which is backed up by an enormous body of evidence, has significant implications for American democracy as well as for what it says about members of the legal profession. In the wake of this historic indictment, it is important for those of us with more information to come forward.
I am personally familiar with an aspect of the indictment’s documentary evidence that may shed light on the actions of one of the attorneys – Kenneth Chesebro — who is identified as Co-Conspirator 5 by the special counsel.
In a civil suit, Judge David Carter called the 2020 election interference scheme “a coup in search of a legal theory.” What I have to offer here can shed light on the anatomy of that fraud. It shows how the attorneys concocted arguments that gave the scheme an air of legitimacy but one that could not withstand public scrutiny. I know this well because a key memorandum drafted by Chesebro — which might otherwise appear relatively innocuous even in how it is discussed in the indictment — laid the foundation for the scheme grounded, in part, on misrepresenting my work. I know this especially well because of my prior communications with Chesebro.
I. Background
According to the indictment, the Trump attorneys participated in a “corrupt plan to subvert the federal government function by stopping Biden electors’ votes from being counted and certified” (para 54). They allegedly helped devise and implement central parts of the conspiracy. Those schemes include an effort to use false slates of electors to obstruct the congressional certification of the election and an effort to get Vice President Mike Pence to use his ceremonial role to interfere with the certification.
The special counsel alleges that Chesebro “assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding” (para 8). It is important to note that the indictment alleges that he and other attorneys’ criminal conduct involved knowingly misrepresenting facts (not just misrepresenting the law). For instance, the indictment states that Rudy Giuliani and Chesebro made factual claims they knew to be false to GOP electors in Pennsylvania to induce those electors to swear to certifications that the two attorneys knew to be fraudulent (paras 61-62).
II. The November 18 Memorandum
The indictment focuses on a series of confidential memoranda that Chesebro wrote in devising the plan to orchestrate false slates of electors. “The plan capitalized on ideas presented in memoranda drafted by Co-Conspirator 5,” the special counsel states (para 54). The first of these documents – Chesebro’s November 18 Memorandum — came five days after “the Defendant’s Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona – meaning, based on the assessment the Defendant’s Campaign advisors had given him just a week earlier, the Defendant had lost the election” (para 13).
That Memorandum, entitled “The Real Deadline for Settling a State’s Electoral Votes,” relied on a gross misrepresentation of my scholarship. What follows are my recollections of Chesebro’s communications with me and my impressions of his misuse of what I had written. Readers can draw their own conclusions.
As the title of the November 18 Memorandum indicates, Chesebro focuses on what he considers the “real deadline” under the federal scheme for presidential elections (see the Memorandum’s “Summary”). In the body of the Memorandum, he quotes me completely out of context. I was discussing the specifics of Florida state law — not what federal law (or, for that matter, any other state’s law) requires or permits.
What’s worse, in quoting and citing two pages of an article I wrote in the Harvard Law Review, the Memorandum makes me stand for the outlandish proposition that, whatever Congress might say and whatever the State’s chief executive might have certified as its official Electoral Slate, any State is free to continue “recounting” the votes cast in that State’s presidential election until January 6, two weeks before the impending presidential inauguration. To compound that problem, Chesebro uses that proposition as support for the myth that the way Hawaii’s electoral votes were counted for Kennedy over Nixon in the 1960 presidential election “buttresses” my supposed “conclusion” and thereby supports this imagined power of each State in the election process.
As an aside, I am not addressing here Chesebro’s misuse of the 1960 history. Others have amply explained how the 1960 Hawaii case has no conceivable application to the events of the 2020 false electors scheme.
It is very clear in the Harvard Law Review article that I was discussing how to interpret a particular piece of Florida legislation. I wrote:
“You can read the Florida statutes–which deal with presidential and gubernatorial elections in the same set of provisions– backwards and forwards without finding even the slightest clue that the state legislature ever decided that all recounts in a contested presidential election must stop by December 12 or, for that matter, at any time before the electors meet to give their votes on December 18, or even before Congress starts to count the votes on January 6.” (emphasis added)
The Chesebro memo extracted the final clause of that passage as though it were a general proposition about the power of States to do what they wish regardless of the Electoral Count Act and independent of the deadlines set by Congress. His memo states:
“The last-minute counting of the Hawaii electoral votes in favor of Kennedy in 1960 buttresses the conclusion of constitutional law scholar Laurence Tribe that, absent some indication by a State to the contrary, the only real deadline for a state to complete its recount of a presidential election is ‘before Congress starts to count the votes on January 6.’” (emphasis in original)
I can say with confidence that the proposition that Chesebro misattributes to me is one I have never embraced. Among other things, it completely disregards the role of the Electoral Count Act – and, even more fundamentally, of Article II of the Constitution in empowering Congress to set the “Time of chusing the Electors, and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.”
In his Memorandum, Chesebro then grossly misrepresents what I wrote in my constitutional law treatise on the power of one Congress, through legislation, to bind a future Congress’s ability to pass new legislation (American Constitutional Law, 3d ed., vol.1, §2-3, at 125-26 n.1 (2000)). My point was simple: That no power exists to create “meta-law;” any congressional statute can be amended or revoked by a later statute. In the context of the Electoral Count Act, it would naturally mean the Act is binding unless and until a future Congress decided to revise or revoke the statute – as the current Congress in fact did, in passing a law signed by the president in late 2022.
Chesebro’s Memorandum flips this on its head, citing my work in support of the very opposite conclusion to undercut the constitutional status of the Electoral Count Act. Why did he feel the need in mid-November 2020 to challenge the binding nature of the Electoral Count Act? The scheme that was carried out over the next several months required just such a challenge, and Chesebro appears to have foreseen it.
Specifically, in an apparent effort to get around the obviously binding force of the Electoral Count Act – as to which John Eastman infamously wrote Vice President Pence’s chief counsel to “implore” him to consider “one more relatively minor violation” of the ECA (para 122) – Chesebro completely misused part of the latest edition of my constitutional law treatise (he cites the pages referenced above). In those passages I explained my view as to why “the power of Congress legislatively to bind subsequent Congresses is limited, for any statute that purported to direct or to forbid subsequent Congresses to do certain things or to follow certain procedures could be repealed, as could any other law, by another duly enacted statute.” Despite the clearly limited nature of that modest proposition, Chesebro cites my writing as though it stands for the radical claim that it would be wrong “to view the Electoral Count Act as tying the Senate’s hands, unless amended” (emphasis added). That is, he averred that the Electoral Count Act could be flouted without a subsequent amendment or revocation by Congress.
What’s worse, as a result of this misrepresentation, Chesebro put me in the (outlandish) camp of those suggesting that the Electoral Count Act can be disregarded – for example, by a unilateral vice presidential decision to deem it “unconstitutional.” He cites other authorities purporting to be aligned with the views he ascribes to me. And his emails to Eastman and Giuliani subsequently first proposed a Senate hearing “with at least two highly qualified legal scholars concluding that the President of the Senate is solely responsible for counting the votes, and that the Electoral Count Act is unconstitutional in dictating limits on debate and dictating who wins electoral votes when there are 2 competing slates and the House and Senate disagree” and then set forth a plan whereby the “Vice President will have emphasized the need for focus on plain language and adherence to the Constitution, by rejecting the role of presiding officer imposed by the Electoral Count Act.”
I must assume that Chesebro knew better when he wrote those remarkable statements in 2020 (perhaps presuming that, because his memo was marked privileged and confidential, I and others would never see it).
Here is further background to the best of my recollection:
- Chesebro had worked with me on these very matters in Bush v. Gore and Bush v. Palm Beach County (I was the Counsel of Record in both those cases) and Chesebro, although no longer part of my core research team then, was privy to all the key conversations;
- Chesebro had discussed these matters with me personally shortly after the Supreme Court’s decisive December 12, 2000 decision in favor of George W. Bush, halting the Florida recount by a vote of 5-4;
- Chesebro had played a role in the research underlying the relevant part of the third edition of my treatise (see page ix of the preface to the third edition, listing Chesebro along with people like Elena Kagan, Ronald Klain, and Jeff Toobin in my acknowledgements);
- Indeed, when I acknowledged Chesebro’s role as a research assistant from the Class of 1986 along with Kagan and Toobin (see. pg iv of the preface to the second edition, 1988), I was specifically referencing work Chesebro had done for me on the precise topic of congressional power under the Necessary and Proper Clause (Art. I, §8, Cl. 18), to regulate the operations of all three branches, including Congress itself, in their discharge of specialized functions – a power I argued, though not everyone agreed, did not extend so far as to enable any one Congress to tie the hands of future Congresses with respect to how they opt to make law, including how their legislative products are to be construed and applied by the other two branches.
- Finally, Chesebro discussed these very issues with me after reading my 2001 Harvard Law Review article criticizing the concurring opinion by Chief Justice Rehnquist. At the time, Chesebro gave me every indication of agreeing with my views of all these issues, although of course we now have good reason to doubt that Chesebro was ever principled enough to say what he really thought as opposed to what he thought it would help him to have others believe he thought.
Chesebro’s conduct in the 2020 election is one of the reasons I joined several dozen prominent legal figures in signing onto an ethics complaint against him submitted to the Supreme Court of New York’s attorney grievance committee. That complaint alleged that his “conduct was infused throughout with ‘dishonesty, fraud, deceit, [and] reckless or intentional misrepresentation’ contrary to the core standard of” the rules of professional conduct.
The latest indictment places his conduct in even more stark terms.
My own conclusion is that all of this, the indictment included, reveals that from at least mid-November 2020, Chesebro had contrived a scheme (later adapted by Eastman), which included misusing the very parts of my treatise that Chesebro had helped me with as a research assistant going back to the second edition (1988), thereby casting me falsely as a supporter of a ludicrous reading of the Constitution that Chesebro and Eastman both apparently sought to normalize so that it would make it easier for Trump to get away with circumventing the Act.
A dissection of the November 18 Memorandum shows not only a gross misrepresentation of legal authorities, but more importantly Chesebro’s pivotal role in laying the groundwork for “a coup in search of a legal theory.”
The import of all this goes well beyond elections past and reaches to elections yet to come. Congress meticulously updated and reinforced the Electoral Count Act in legislation signed into law last December. In future elections, removing the guardrails of the Electoral Count Act as Chesebro sought to do could grievously endanger our entire system of self-government under law.
Image: Special Counsel Jack Smith arrives to remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. (Drew Angerer/Getty Images)