Kenneth Chesebro: A Chief Architect of the False Elector Scheme A comprehensive analysis of his words and known conduct in the efforts to overturn the 2020 election

I. Introduction

Kenneth Chesebro’s recent decision to plead guilty in Fulton County, Georgia deprived the American people of an immediate public trial. The televised proceedings would have showcased – and tested – the District Attorney’s case against Chesebro and, indirectly, former President Donald Trump for the alleged criminal conspiracy to overturn the 2020 presidential election. In the following analysis, we describe in detail the overall case that could be made on the basis of Chesebro’s conduct in conjunction with other alleged co-conspirators.

Our analysis serves multiple purposes.

The first is specific to pending criminal charges in Georgia. Our analysis shows precisely what Chesebro’s alleged conduct involved and the legal significance for criminal liability for others who joined him in the alleged enterprise. We examine the count of the indictment to which he pleaded guilty, Count 15, Conspiracy to File False Documents, O.C.G.A. §§ 16-4-8 and 16-10-20.1(b)(1), as well as the lead charge in the indictment that remains against 15 co-defendants, RICO Conspiracy, O.C.G.A. § 16-14-4(c). Our analysis demonstrates what awaits the other defendants, including Trump, in the forthcoming Georgia trial.

The analysis also indicates what testimony Chesebro himself might provide against co-defendants as part of the plea agreement that he testify truthfully if the Georgia prosecutors call him as a witness. Fulton County prosecutors have recorded a proffer statement from Chesebro in which he discusses at least some of the evidence detailed in the analysis below. Chesebro’s full proffer has not been publicly released. In a separate piece, we assessed the portions of his recorded testimony that were provided to the media and reported on. We explained why the portions of Chesebro’s proffer reported by the Washington Post warrant additional scrutiny. This essay supplements that analysis, providing a full outline of what Chesebro can say if he testifies consistently with the documentary record he created.

The second purpose of this analysis concerns how Chesebro’s own words, as reflected in the lengthy evidentiary record, might be relevant to potential criminal charges against him, Trump and others in other jurisdictions. Chesebro is readily identifiable as one of the chief unindicted co-conspirators in the federal indictment of Trump. Although it is not clear if Chesebro will be charged federally, his conduct will in any event be a key part of Special Counsel Jack Smith’s trial of Trump. It is thus important to have a full sense of Chesebro’s alleged conduct and how it interacts with criminal laws.

Then there are other state jurisdictions. The federal and Georgia indictments both reference how the false electors scheme was carried out across multiple other states. Georgia criminal law is hardly unique, and the charges we explore here are indicative of those other jurisdictions may review. Examining Chesebro’s role in the alleged conspiracy with Trump and others thus provides a roadmap to show how other prosecutors, at the state and federal level, may investigate this case.

II. Facts

Section II provides the most comprehensive publicly available analysis of the facts relating to Chesebro. The House Select Committee to Investigate the January 6th Attack on the U.S. Capitol uncovered significant evidence concerning Chesebro’s role in Trump’s efforts to overturn the legitimate results of the election. (Disclaimer: one of the authors of this article served as a senior staff member with a principal role in helping draft the committee’s final report.) Subsequent investigative reporting has revealed additional details. Chesebro and his attorneys have also made numerous public statements revealing relevant information. We base our extensive recital of the facts upon those public sources. We note that Chesebro’s recorded proffer statement may contain additional evidence that is not yet publicly known and that may emerge at trial.

We begin with an overview of the voluminous factual record before doing a deep dive into the evidence underlying each of the points in the summary.

A. Summary of the Facts

• Chesebro’s plan – constructed over the course of four principal memos, dated November 18, December 6, December 9, and December 13, 2020 – shifted its legal theories over time. At first, Chesebro proposed that the Trump-Pence electors for Wisconsin meet and cast their votes on December 14, 2020 as a contingency in case a court decision or the state legislature flipped the state from Joe Biden to Donald Trump “by January 6.” But his plan subsequently evolved to encompass six other states, including Georgia, and to remove any such contingencies, so that the Trump-Pence electors were submitted to the relevant officials even absent a court ruling or state legislature determination in Trump’s favor.^[1]
• Chesebro’s plan was focused on the January 6th joint session of Congress from the beginning. In his November 18 memo, Chesebro argued that January 6th was the “real deadline” for submitting the presidential electors’ votes and that the “safe harbor” in the 1887 Electoral Count Act (ECA) should be ignored. In other memos, he declared that the ECA was “unconstitutional” and the Trump campaign should ignore or find its way “around” the ECA.
• Chesebro’s December 6 and December 13 memos show that the false elector scheme was part of his plan to prevent Joe Biden’s legitimately certified electoral votes from being counted on January 6–and that Chesebro sought to use the false electoral votes to delay or deny Biden’s victory. Although Chesebro’s December 6 memo is not cited in the Fulton County indictment, the memo is now presumably available to the DA as part of Chesebro’s cooperation. The document bolsters Willis’s case that the false elector scheme was “intended to disrupt and delay the joint session of Congress on January 6, 2021.” For example, Chesebro wrote that “it seems feasible that the Trump campaign can prevent Biden from amassing 270 electoral votes on January 6,” but only if “the Trump-Pence electors meet and vote, in all six contested States” on December 14, 2020 and “send in the certificates containing their votes” to the relevant officials. In a separate email on January 1, 2021, Chesebro declared that Biden “was not legitimately elected” and that the certified Biden-Harris electoral votes “are not legitimate.” He offered a strategy “to find a way to prevent the Biden camp from concluding the vote on Jan. 6.” (emphasis added)
• In his Fulton County proffer statement, Chesebro reportedly revealed for the first time that he personally met with Trump and others in the Oval Office on Dec. 16, 2020.^[2] While Chesebro’s revelation is significant, his reported description of that meeting warrants additional scrutiny. For example, Chesebro claims to have discussed only his Nov. 18 memo with Trump, even though it was outdated by the time they met. As we explain in this analysis, Chesebro’s scheme evolved dramatically in his Dec. 6 and Dec. 13 memos. Indeed, the federal indictment of Trump alleges that Chesebro’s Dec. 6 memo “marked a sharp departure from” his Nov. 18, memo, as Chesebro was “advocating that the alternate electors originally conceived of to preserve rights in Wisconsin instead be used in a number of states as fraudulent electors to prevent Biden from receiving the 270 electoral votes necessary to secure the presidency on January 6.” Therefore, it is curious that Chesebro claims to have discussed only his Nov. 18 memo, which is relatively innocuous and had been superseded by his other writings. Our previous analysis provides additional reasons that Chesebro’s reported description of the Dec. 16 meeting with Trump warrants scrutiny.^[3]
• As part of his false electors scheme, Chesebro argued that the Vice President should assume powers that are clearly not granted by the Constitution. Chesebro proposed that Pence could refuse to count the certified electoral votes from several states, including Georgia, during the joint session of Congress. This was part of the plan to delay or deny Biden’s victory. Chesebro also advised that the “President of the Senate” could disregard court decisions because he “can make his own judgment” that state courts “violated due process.” While Chesebro’s co-defendant, John Eastman (a lawyer who worked for Trump and who has also been indicted in Fulton County), has received widespread scrutiny for his role in this part of the conspiracy, Chesebro advocated the same allegedly unlawful position. Chesebro sought to use the false electoral votes as a pretext to have the Vice President, or a senator standing in as the President of the Senate after Pence recused himself from the proceedings, refuse to count Biden’s certified electoral votes. Chesebro’s December 6 and December 9 memos predate Eastman’s own two memos on this topic. Chesebro also edited Eastman’s first memo outlining a “Jan 6 scenario,” which Chesebro wrote was “Really awesome.” In that memo, Eastman argued that the Vice President could refuse to count the certified electoral votes from Georgia and other states.^[4] Eastman’s “Jan 6 scenario” relied on the premise that “7 states have transmitted dual slates of electors to the President of the Senate.”^[5] Even though Eastman’s plan thus apparently relied on Chesebro’s false electors scheme, Chesebro has reportedly tried to distance himself from Eastman’s work, telling Fulton County prosecutors that his praise “wasn’t an endorsement of Eastman’s ideas.” Chesebro’s proffer in this regard again warrants additional scrutiny, as it is inconsistent with his prioractions and writings.^[6]
• Chesebro personally drafted the false electoral college documents that are the subject of Count 15 to which he pleaded guilty and then emailed them to those responsible for convening the Trump-Pence electors, including in Georgia.^[7] Count 15 stems from his role in authoring the false electoral certificates and allegedly encouraging others to “falsely hold themselves out as the duly elected and qualified presidential electors from the State of Georgia.” At the time that Chesebro sent these documents, his plan was apparently not contingent on the Trump campaign winning election litigation in Georgia or elsewhere prior to January 6, 2021. Nor was it apparently contingent upon any state legislature appointing the Trump-Pence electors prior to that date.
• Former New York City Mayor Rudy Giuliani, who served as Trump’s personal attorney, endorsed Chesebro’s plan and Chesebro reported to Giuliani while executing it. Giuliani has been charged in Fulton County with participating in the false elector scheme, including the same Count 15 Chesebro pleaded guilty to in addition to the sweeping RICO conspiracy, and Chesebro’s testimony could directly implicate Giuliani.
• Three senior Trump campaign lawyers, including the campaign’s general counsel, Matthew Morgan, refused to participate when the plan switched from “contingent” electors to what they called Chesebro’s “alternate” electors scheme. Morgan initially supported an effort to convene “contingency” electors on December 14, with the understanding that the electors’ votes would become valid only if the courts overturned the election’s results in any of the relevant states before the joint session of Congress met on January 6, 2021. However, Chesebro’s plan called for “alternate electors” to meet on December 14, cast their votes, and submit them regardless of whether the campaign won any of its election lawsuits prior to January 6. Morgan withdrew from the plan before December 14 because he did not support this shift.
• Two top lawyers in the White House Counsel’s Office, Pat Cipollone and Patrick Philbin, considered the effort to convene slates of electors in the states that Trump lost to be one of the “bad theories” that required them to play “whack-a-mole.”^[8]
• Chesebro’s plan did not resemble the circumstances surrounding the 1960 presidential election in Hawaii. Chesebro cited the 1960 presidential election in Hawaii as a justification for his false electors scheme. But the circumstances in 1960 and 2020 were dramatically different, and his advice deviated from that earlier example in multiple fundamental ways.
• In an email exchange with Eastman on December 24, 2020, Chesebro wrote that the “odds of action” by the Supreme Court “before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”^[9] Chesebro’s use of the word “wild” was an apparent reference to Donald Trump’s tweet calling for his supporters (“Be there. Will be wild!”) to join a protest in Washington, D.C. on January 6. Chesebro also argued that filing an election challenge with the Supreme Court could feed “the impression that the courts lacked the courage to fairly and timely consider these complaints, and justifying a political argument on Jan. 6 that none of the electoral votes from the states with regard to which the judicial process has failed should be counted.”^[10] According to the New York Times, Chesebro argued that the “relevant analysis” “is political.” Eastman has also been charged in Georgia for participating in the false electors scheme under Count 15 and for the RICO conspiracy, among other charges. Chesebro could have valuable testimony to offer about Eastman in the State’s case; and may also make an impact against Eastman federally, as well, where Eastman has already been labeled unindicted co-conspirator 2 in Smith’s indictment against Trump.
• According to extensive video footage obtained by CNN, Chesebro personally joined the “wild” events of January 6. He closely followed alongside InfoWars conspiracy theorist Alex Jones around the grounds of the U.S. Capitol.^[11] This suggests Chesebro might be able to testify directly to the involvement of other individuals in the effort to overturn the election–with consequences in both the State and federal cases. In his Fulton County proffer statement, Chesebro reportedly attempted to distance himself from Jones and also claimed that he did not personally witness any violence at the Capitol. But, once again, Chesebro’s claims warrant further inspection, as the attack on the U.S. Capitol was well underway when he arrived on the scene on Jan. 6.^[12] In addition, Chesebro attorney Scott Grubman has stated in interviews that Chesebro does not believe the 2020 election was stolen and does believe that Joe Biden is the legitimate president. Thus, Chesebro can also testify to the underlying falsity of the claims that supported the false electors scheme.

B. Analysis of Chesebro’s Memos

1. Chesebro’s November 18, 2020, Memo: The “Real Deadline” is January 6

The first version of Chesebro’s plan can be found in a November 18, 2020 memo he sent to Judge James Troupis, a lawyer working with the Trump campaign in Wisconsin.^[13] As the memo’s title indicates – “The Real Deadline for Settling a State’s Electoral Votes” – Chesebro was focused on the January 6, 2021, joint session of Congress from the outset. Chesebro argued that the Trump campaign should mostly disregard other, earlier deadlines – namely, those contained in the Electoral Count Act – and instead focus its attention on January 6th. Chesebro wrote (emphasis in original):

There is a very strong argument, supported by historical precedent (in particular, the 1960 Kennedy-Nixon contest), that the real deadline for a finding by the Wisconsin courts (or, possibly, by the Legislature) in favor of the President and Vice President is not December 8 (the “safe harbor” deadline under the Electoral Count Act), nor even December 14 (the date on which electors must vote in their respective States), but January 6 (the date the Senate and House meet for the counting of electoral votes).^[14]

Chesebro justified his advice by citing the 1960 presidential election between John F. Kennedy, Jr. and Richard M. Nixon – specifically, how Hawaii’s electoral votes were determined in that election. However, Hawaii’s experience in 1960 was not at all analogous to the 2020 presidential election as it was conducted in Wisconsin, Georgia, or any of the other five states where the false electors were convened by the Trump campaign.

Nixon was initially declared the winner of Hawaii’s three electoral votes in 1960 by an exceptionally narrow margin of 140 votes.^[15] As of December 19, 1960, the date on which electors from all 50 states were required to cast their votes under the ECA, Hawaiian officials were still conducting a court-ordered recount of the ballots. The outcome in Hawaii (but not overall) was still very much in doubt. For that reason, the Kennedy campaign convened its own electors to cast their votes should the recount switch the outcome. Indeed, it did. When the recount was completed, Kennedy was declared the winner by just 115 votes.^[16] A court certified Kennedy’s victory and the Governor of Hawaii then provided a certificate of ascertainment for Kennedy’s electors.^[17]

By December 14, 2020, the day on which both the legitimate and false electors separately met to cast their votes, there were no active recounts in Georgia. All the votes had been counted and certified and, in Georgia, recounted and recertified – twice. The vote counting, and any recounting, was complete in the six other states where the Trump campaign convened its electors as well. As shown below, Chesebro’s advice departed from the 1960 Hawaii example in other material ways as well.

Returning to Chesebro’s November 18 memo, he did not limit his advice to a scenario in which the courts ruled in the Trump campaign’s favor. Instead, he argued that the Trump-Pence electors should meet and cast their votes so they would be “considered timely” should a “court decision (or perhaps, a state legislature determination)” be “rendered after December 14 in favor of the Trump-Pence slate of electors.”^[18] That is, Chesebro considered intervention by a state legislature to be a possibility, even though that was not the same scenario as in the 1960 election in Hawaii. Chesebro also reiterated that Trump’s electors should be convened “so that any judicial proceedings which extend past that date, working toward resolution of who has won Wisconsin’s electoral votes, are entirely compatible with federal law provided that they are completed by January 6” (emphasis added). ^[19]

The last words quoted above – “provided that they are completed by January 6” – are key for understanding how Chesebro’s plan evolved in the coming weeks. As seen in the next memo, Chesebro would later drop this requirement entirely by arguing that a court or state legislature need not act by January 6th.

In the November 18 memo, Chesebro wrote:

It may seem odd that the electors pledged to Trump and Pence might meet and cast their votes on December 14 even if, at that juncture, the Trump-Pence ticket is behind in the vote count, and no certificate of election has been issued in favor of Trump and Pence. However, a fair reading of the federal statutes suggests that is a reasonable course of action. ^[20]

Neither of the two scenarios envisioned by Chesebro as of November 18 came to fruition. At no point in time did a state or federal court reverse the outcome in any of the seven states where the Trump-Pence electors met and cast their votes. Nor did any state legislature overturn the outcome in Trump’s favor, or appoint his electors, before January 6th. Trump and his co-conspirators tried to convince state legislatures to do just that – but failed. Moreover, Biden was already the certified winner in all seven states where the false Trump-Pence electors met and cast their votes on December 14.

2. Chesebro’s December 6, 2020, Memo: A “Bold, Controversial Strategy” to Prevent Recognition of Biden’s Victory on January 6th

On December 6, 2020, Chesebro sent a second memo – titled, “Important That All Trump-Pence Electors Vote on December 14” – to Judge James Troupis.^[21] Chesebro’s proposal had evolved – dramatically – in the weeks since his first memo. The federal indictment of Trump states that the December 6 memo “marked a sharp departure” from the earlier one. Chesebro now recommended that Trump’s electors meet and cast their votes in “all six” of what he described as the “contested states” – not just Wisconsin. And Chesebro seemed to reveal his true intent (emphasis added):

[I]t seems feasible that the Trump campaign can prevent Biden from amassing 270 electoral votes on January 6, and force the Members of Congress, the media, and the American people to focus on the substantive evidence of illegal election and counting activities in the six contested States.”^[22]

That is, Chesebro proposed a strategy for blocking or delaying Biden’s victory during the January 6th joint session of Congress.

In his first memo, discussed above, Chesebro argued that Trump’s electors should meet and vote so that they would be valid if a court decision or state legislature overturned the election’s results in Wisconsin after December 14. In his December 6 memo, however, Chesebro’s rationale was very different. He now saw the Trump electors as crucial for disrupting Biden’s victory, even in the event the courts and state legislature did not reverse the election’s results in any state.

Chesebro claimed that “three things” needed to “happen.” First, the Trump-Pence electors in six states needed to meet and vote on December 14 and then “send in the certificates containing their votes.”

Second, Chesebro advised that, as of January 6, 2021, there should be at least one “pending” lawsuit in each of the six states “in either federal or state court, which might plausibly, if allowed to proceed to completion, lead to either Trump winning the State or at least Biden being denied the State.” Chesebro added in parentheses: “ideally by then Trump will have been awarded one or more of the States.”^[23]

This is another departure from the 1960 Hawaii precedent. In that instance, a court-ordered recount had been completed and a Hawaiian court had certified Kennedy’s victory before the joint session of Congress.^[24] Here, in his December 6 memo, Chesebro argued that a lawsuit in a federal or state court merely needed to be “pending” as of January 6, 2021. In addition, one could read this passage in Chesebro’s December 6 memo as implying that litigation should be considered as a pretext to justify the false electors’ votes. Indeed, the federal indictment describes the December 6 memo as “setting up a fake controversy that would derail the proper certification of Biden.” And the indictment goes on to allege that Chesebro was involved, with Giuliani, in filing cases “as a pretext to claim that litigation was pending.”^[25]

Third, Chesebro argued that “Vice President Pence, presiding over the joint session, takes the position that it is his constitutional power and duty, alone, as President of the Senate, to both open and count the votes, and that anything in the Electoral Count Act to the contrary is unconstitutional.”^[26] This was even more of a departure from the 1960 Hawaii example. Chesebro was laying the groundwork for an argument that Pence, or a senator standing in as President of the Senate, could refuse to count electoral votes during the joint session of Congress. Chesebro offered a brief caveat, claiming he was “not necessarily advising this course of action, and the Vice President need not make a decision on how to proceed until January 6, and obviously there are many factors that will come to bear on how he proceeds.” ^[27] But he then returned to his main intention.

Chesebro emphasized that the “alternate slates of electors” were necessary to prevent the counting of Biden’s certified electoral votes on January 6:

My point here is that it is important that the alternate slates of electors meet and vote on December 14 if we are to create a scenario under which Biden can be prevented from reaching 270 electoral votes, even if Trump has not managed by then to obtain court decisions (or state legislative resolutions) invalidating enough results to push Biden below 270. (emphasis added)^[28]

Chesebro explained that his strategy would not just “keep Biden below 270 electoral votes,” but it also “seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count unless and until Biden can obtain a favorable decision from the Supreme Court upholding the Electoral Count Act as constitutional, or otherwise recognizing the power of Congress (and not the President of the Senate) to count the votes” ^[29] (emphasis in original).

Chesebro argued that the electoral count “could be managed” in such a way that Biden would have “to seek Supreme Court review either when he is behind 12-0 in the electoral count or, at least, when he is behind 232-227,” but “only if all six States are still contested, and all six slates of Trump-Pence electors had voted on December 14.” ^[30]

Once again, this is not at all like events in 1960 in Hawaii. And Chesebro’s “managed” electoral vote count would have required Vice President Pence, acting in his role as the President of the Senate, to refuse to count the electoral votes from six states. That would’ve been flatly illegal, as one of us has argued elsewhere.^[31]

Chesebro conceded that the Supreme Court may not rule in Trump’s favor. But he still thought this course was worth pursuing because it would buy time before the Court ruled against Trump:

Even if, in the end, the Supreme Court would likely end up ruling that the power to count the votes (in the sense of resolving controversies concerning them) does not lie with the President of the Senate, but instead lies with Congress (either voting jointly, or in separate Houses), letting matters play out this way would guarantee that public attention would be riveted on the evidence of electoral abuses by the Democrats, and would also buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump’s column. ^[32]

“I recognize that what I suggest is a bold, controversial strategy, and that there are many reasons why it might not end up being executed on January 6,” Chesebro wrote. “But as long as it is one possible option, to preserve it as a possibility it is important that the Trump-Pence electors cast their electoral votes on December 14.” ^[33]

Chesebro was concerned that “word of this will leak out prior to December 14” because the Trump-Pence electors would be casting their votes “even in States in which Trump has not been declared the winner.” ^[34] So he proposed “messaging…this as a routine measure that is necessary to ensure that in the event the courts (or state legislatures) were to later conclude that Trump actually won the state, the correct electoral slate can be counted in Congress in January.” ^[35] Chesebro claimed they should say this is “just as the Democrats did in Hawaii in 1960, which ended up with Hawaii’s electoral votes being awarded to Kennedy, even though the litigation was not resolved until after the electors voted (see my Nov. 18 memorandum).” ^[36]

As noted, Chesebro’s historical analogy is specious. His strategy to block or delay Biden’s victory was not supported by the 1960 Hawaii precedent. In addition, as part of his “messaging” proposal, Chesebro pointed to an article by Van Jones and Lawrence Lessig that was published on CNN.com on November 4, 2020.^[37] Chesebro claimed that this article supported his reliance on 1960 Hawaii as a precedent. It did not – and his falsely casting his approach as aligned with more mainstream views is revealing. Some context is in order.

As the title of the article made clear (“Why Pennsylvania should take its time counting votes”), the authors argued that the “safe harbor” in the Electoral Count Act, which fell on December 8, 2020, might pass before Pennsylvanian officials had a chance to count all the state’s votes and certify the winner’s slate of electors. In that specific instance, the authors argued, the ECA’s “safe harbor” (under which “Congress promises to count the votes of any slate of electors that has been certified at least six days before the Electoral College is to vote”) should not prevent Pennsylvania from determining who was the true winner of the popular vote. Again, in this specific scenario, the authors recommended that both slates of electors meet and vote on December 14, 2021, so that either slate could be certified by the governor and then counted on January 6, 2021. The authors explicitly stated that their advice, which was based on the actual experience in 1960 Hawaii, was “assuming the final count of the popular votes has not yet been certified” by December 14, 2020. Jones and Lessig also noted a condition that Chesebro’s scheme lacked. “If the state’s governor has certified only one slate, the Electoral Count Act says that is the slate that Congress must count,” they wrote.

The scenario Jones and Lessig envisioned did not come to pass in Pennsylvania, Georgia, or any other state. Pennsylvania’s governor certified the election’s results on November 24, 2020.^[38] That is, the controversy contemplated by Jones and Lessig had already been rendered moot nearly two weeks prior to when Chesebro sent his memo to Judge Troupis. In Georgia, a second recount was completed in early December, and Governor Kemp recertified Biden as the winner on December 7.^[39] In short, the 1960 Hawaii example and the CNN article Chesebro cited were clearly false analogies.^[40]

Chesebro’s December 6 (and November 18) memo also falsely claimed that Chesebro’s approach was supported by highly esteemed law professor Laurence Tribe – a claim that Tribe himself has effectively dissected. Tribe wrote, “I can say with confidence that the proposition that Chesebro misattributes to me is one I have never embraced” and explained why “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).”^[41]

Indeed, in his December 6 memo, Chesebro quoted from Tribe’s work as if it justified his plan, when Tribe’s writings did just the opposite. Tribe’s expert opinion clearly contradicted Chesebro’s own plan. Chesebro argued that Tribe “has likewise noted that the only real deadline for a State’s electoral votes to be finalized is ‘before Congress starts to count the votes on January 6.’” But Chesebro advocated that the Trump-Pence false electors be submitted “even if Trump has not managed by then [Jan. 6] to obtain court decisions (or state legislative resolutions) invalidating enough results to push Biden below 270.” That is, Chesebro’s own plan did not envision the electoral votes being “finalized” by January 6.

In his December 6 memo, Chesebro was keen to sidestep any involvement of the states’ governors or secretaries of state. He argued that “the electors in the contested States should be able to take the essential steps needed to validly cast and transmit their votes without any involvement by the governor or any other state official” (emphasis in original).^[42] But that was not entirely true – as Chesebro himself recognized in the same memo. Chesebro went on to write:

The only thing ordinarily contemplated by Sect. 9 [of the Electoral Count Act] that the Trump-Pence electors would not be able to do (unless Trump wins by December 14) is staple to each of the certificates the certificate of ascertainment that the governor is directed to give the winning electors pursuant to 3 U.S.C. § 6. But, as the Hawaii 1960 example shows, this is hardly fatal; proof that the Trump-Pence electors are the validly appointed ones can be furnished to Congress before it meets on January 6. ^[43]

In 1960, the Hawaiian governor provided a certificate of ascertainment for Kennedy’s electors after a recount declared him the winner. That certificate of ascertainment was provided to Congress and other officials prior to the joint session of Congress on January 6, 1961. Ultimately, Chesebro advocated that the false electors’ votes be submitted even without a certificate of ascertainment. Indeed, no governor issued a certificate of ascertainment for any of the Trump-Pence electors in late 2020. These false electoral votes were submitted to Congress anyway. And as late as January 1, Chesebro advocated that Pence act anyway. This is another reason that the example of 1960 Hawaii proved to be inapposite, and Chesebro fundamentally misrepresented its applicability.

3. Chesebro’s December 9, 2020 Memo: There’s “a wrinkle” in Georgia, which is “somewhat dicey”

Chesebro’s third memo to Troupis is dated December 9, 2020 – that is, one day after the “safe harbor” specified in the Electoral Count Act – and titled, “Statutory Requirements for December 14 Electoral Votes.”^[44] Chesebro had previously opined that either the courts or state legislatures could grant Trump’s electors the legal validity they lacked. In his third memo on the topic, Chesebro recognized that the Trump electors still lacked any official imprimatur. However, he added the possibility that Congress could decide they were valid. Chesebro wrote:

It appears that even though none of the Trump-Pence electors are currently certified as having been elected by the voters of their State, most of the electors (with the possible exception of the Nevada electors) will be able to take the essential steps needed to validly cast and transmit their votes, so that the votes might be eligible to be counted if later recognized (by a court, the state legislature, or Congress) as the valid ones that actually count in the presidential election. (emphasis added)^[45]

Chesebro claimed that “each electoral vote” could be “potentially important if the election ultimately extends to, and perhaps past, January 6 in Congress.” ^[46] Therefore, Chesebro again envisioned a scenario in which Biden’s victory was denied or delayed past the joint session of Congress.

Chesebro listed what he claimed were the statutory requirements for the electors according to federal and then state law for each of the six states in question. When it came to Georgia, he wrote “there’s a wrinkle” if any of the original Trump-Pence electors had to be replaced by substitutes. Chesebro explained:

Unlike in other States, where that choice is automatically effective, in Georgia a choice must be ratified: “immediately after such choice the name of the person so chosen shall be transmitted by the presiding officer of the college to the Governor, who shall immediately cause notice of his or her election in writing to be given to such person.”

Could the Governor, in the current situation, refuse to ratify the choice, on the ground that this slate of electors is not the one the voters elected on Nov. 3 (according to the official canvass)? Given the statutory provision, it seems imperative that every effort be made to secure the participation of all 16 electors, and to avoid making a substitution if at all possible. (emphasis in original)^[47]

Chesebro concluded that “voting by an alternate slate of electors” is “somewhat dicey in Georgia and Pennsylvania in the event that one or more electors don’t attend (require gubernatorial ratification of alternates).” ^[48]

It is noteworthy that Chesebro wanted to avoid any involvement by Georgia Governor Brian Kemp, who had already recertified Biden as the winner of Georgia’s electoral votes on December 7. However, the “wrinkle” Chesebro warned about came to pass. Four of the original Trump-Pence electors either could not attend the vote on December 14 or did not want to participate. Therefore, the Trump campaign and Republican officials in Georgia replaced them with four alternates.

Chesebro’s co-defendant David Shafer, the Chairman of the Georgia Republican Party, informed Governor Kemp, by letter, that the substitutions had been made.^[49] But Kemp did not sign the attached paperwork, so he did not ratify the substitutions as required by Georgia law.^[50] Nevertheless, the unsigned paperwork was submitted to the National Archives along with the false Trump-Pence electoral votes.^[51]

Two of the charges against Chesebro and several of his co-defendants in Fulton County – Counts 17 and 19 of the indictment – stem from this substitution. Fulton County DA Willis alleges in Count 17 that Chesebro and several others, including Trump and Giuliani, “unlawfully conspired, with the intent to defraud, to knowingly make a document titled “RE: Notice of Filling of Electoral College Vacancy … in such manner that the writing as made purports to have been made by the authority of the duly elected and qualified presidential electors from the State of Georgia.”^[52] Count 19 includes a similar charge, adding that the defendants “unlawfully conspired to knowingly and willfully make and use a false document.” ^[53]

4. Chesebro’s December 13, 2020, Email: A “Hugely Controversial” Strategy for the “President of the Senate”

Chesebro wrote a fourth memo that is dated December 13, 2020 – the day before the electors met and cast their votes.^[54] Whereas his first three memos were addressed to Troupis, Chesebro’s fourth memo was contained in an email sent to Rudy Giuliani and another recipient. The subject line of the email, “Brief notes on ‘President of the Senate’ strategy,” again demonstrated that Chesebro’s plan for the false electors went far beyond a contingency for election litigation. Chesebro himself wrote that his proposal would be “hugely controversial.”

Chesebro argued that the “President of the Senate” could refuse to count Biden’s certified electoral votes from the six states with false electors. Chesebro proposed that Senator Chuck Grassley or another Republican senator could stand in for Vice President Pence as the President of the Senate, should the Vice President recuse himself from the proceeding. Chesebro argued that this senator could then refuse to count Biden’s certified electoral votes.

While Chesebro noted that he had “not delved into the historical record,” Vice President Pence’s “counsel has, and seems totally up on this, and I’m sure there are many other lawyers who can add a great deal, John Yoo in particular.”^[55] It is not clear how Chesebro knew that Pence’s counsel, Greg Jacob, was “totally up” on the Vice President’s role during the joint session. However, Jacob and other lawyers in the White House Counsel’s Office ultimately rejected the plan that Chesebro, and subsequently Eastman, set forth.

Chesebro wrote:

The bottom line is I think having the President of the Senate firmly take the position that he, and he alone, is charged with the constitutional responsibility not just to open the votes, but to count them – including making judgments about what to do if there are conflicting votes – represents the best way to ensure:

1. that the mass media and social media platforms, and therefore the public, will focus intensely on the evidence of abuses in the election and canvassing; and

2. that there will be additional scrutiny in the courts and/or state legislatures, with an eye toward determining which electoral votes are the valid ones. (emphasis in original)^[56]

Therefore, Chesebro’s advice again departed from the 1960 Hawaii example, as his false elector plan was, once again, evidently not contingent on the Trump campaign winning its election lawsuits prior to January 6. Nor did he argue that certificates of ascertainment signed by the states’ governors were necessary to submit the Trump-Pence electors’ votes. Instead, Chesebro’s “strategy” was based on the premise that the Trump-Pence electors would be submitted to the Vice President, Congress and other authorities in order to generate media attention and “additional scrutiny.” He argued that the “courts and/or state legislatures” could then determine which were “the valid ones.”

Chesebro thought this was a way for the Trump campaign to gain “leverage.” ^[57] He provided a lengthy “chronology” for how events could play out from January 3rd until after January 6th. The sequence of events he proposed was intended to buttress his argument that the President of the Senate, either Pence or a senator acting in his place, could refuse to count electoral votes. For instance, Chesebro proposed a hearing by the Senate Judiciary Committee, which would feature “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 [of electors] and the House and Senate disagree.” ^[58]

Chesebro argued that Pence could recuse himself from the joint session, “given that there is dispute about the electoral votes of some of the States, and especially given that it might well be the responsibility of the President of the Senate to actually count the votes, he has a conflict of interest, and he feels he cannot participate in the proceeding” ^[59] (emphasis in original).

In that event, “the president pro tempore acts as the President of the Senate, and thus is the one with the sole power and responsibility to play that role in the joint session.” Chesebro argued that whether Senator Chuck Grassley or another senior Republican Senator took on that role, the president pro tempore then “proceeds to open and count first Alabama, and then Alaska, at which point Trump and Pence are leading 12-0.” ^[60]

Alphabetically, Arizona would be the next state. But instead of simply counting Arizona’s certified electoral votes, Chesebro advised that the president pro tempore should take a different course:

He [the president pro tempore] then opens the two envelopes from Arizona, and announces that he cannot and will not, at least as of that date, count any electoral votes from Arizona because there are two slates of votes, and it is clear that the Arizona courts did not give a full and fair opportunity for review of election irregularities, in violation of due process. ^[61]

Here, we should note again that Chesebro’s advice was not contingent on a court order (as was the case in the 1960 Hawaii example). In fact, Chesebro argued that the president pro tempore should refuse to count Arizona’s electoral votes, because he (Chesebro) disagreed with the Arizona courts’ rulings. Chesebro attempted to justify his view by citing a court filing submitted by Jack Wilenchik, an attorney who worked for the Trump campaign in Arizona.^[62]

Wilenchik himself allegedly understood that Chesebro’s false elector scheme was not contingent on any lawsuit, but instead part of a political strategy for January 6th. In a December 8, 2020 email, Wilenchik recognized that the Trump-Pence electors’ votes would not be “legal under federal law,” because they lacked a certificate of ascertainment, and would therefore be “fake.” But he nonetheless endorsed Chesebro’s scheme, writing:

I just talked to the gentleman who did that memo, [Chesebro]. His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law –because they’re not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6^th. (They could potentially argue that they’re not bound by federal law because they’re Congress and make the law, etc.) Kind of wild/creative –I’m happy to discuss. My comment to him was that I guess there’s no harm in it, (legally at least) –i.e. we would just be sending in “fake” electoral votes to Pence so that “someone” in Congress can make an objection when they start counting votes, and start arguing that the “fake” votes should be counted.^[63]

In a subsequent email, obtained by The New York Times, Wilenchik wrote that “‘alternative’ votes is probably a better term than ‘fake’ votes” and added a smiley face emoji.^[64]

Returning to Chesebro’s December 13, 2020 email, he wanted to use this “fight” in Congress to prompt a ruling by the U.S. Supreme Court. “Unless by then the Supreme Court has taken the case and rejected it on the merits, the President of the Senate can make his own judgment that the Arizona proceedings violated due process, so he won’t count the votes in Biden’s column.” He did not recommend that the President of the Senate count the Trump-Pence false electors, but instead dictate that for Arizona’s electoral votes to be counted “it has to rerun the election, or engage in adequate judicial review, or have the legislature appoint electors.” ^[65] Chesebro did not offer any legal basis or precedent for this advice.

Chesebro’s notion that the President of the Senate could override the court decisions in Arizona was breathtaking and lacked any foundation.

Chesebro went on to summarize what might happen after January 6, 2021. The scenario he described would have resulted in nothing short of a constitutional crisis. He conceded that the Supreme Court might still intervene and decide in Biden’s favor. But if the Supreme Court “were to dodge,” Chesebro envisioned a scenario in which the President of the Senate continued to refuse to count the electoral votes and no victor was certified by Congress. Then, in Chesebro’s view, either Speaker of the House Nancy Pelosi would become the “acting president,” or the “Senate would reelect Pence as Vice President, who would then become acting president on Jan. 20.” ^[66]

Chesebro recognized that “many” people would object to the chaotic situation his own advice would produce. But he thought it was possible Republican-controlled state legislatures could appoint the Trump-Pence electors. Chesebro wrote:

In this situation, which would seem messy and unpalatable to many with renewed attention to the election abuses, and with several states controlled by Republican legislators faced with perhaps not being counted in the Electoral College, it doesn’t seem fanciful to think that Trump and Pence would end up winning the vote after some legislatures appoint electors, or else that there might be a negotiated solution in which the Senate elects Pence Vice President, and Trump agrees to drop his bid to be elected in the House, so that Biden and Harris are defeated, even though Trump isn’t reelected. (emphasis added)^[67]

Regardless, Chesebro added:

Any of the outcomes sketched above seems preferable to allowing the Electoral Count Act to operate by its terms, with Vice President Pence being forced to preside over a charade in which Biden and Harris are declared the winner of an election in which none of the serious abuses that occurred were ever examined with due deliberation. (emphasis added)^[68]

That is, Chesebro expressly sought to break with the process set forth in the Electoral Count Act.

On Dec. 16, 2020, just three days after sending his “Brief notes on ‘President of the Senate’ strategy” to Giuliani, Chesebro personally met with Trump and others in the Oval Office. Chesebro first disclosed this meeting to prosecutors in Fulton County, Georgia during the recorded proffer statement he provided pursuant to his plea agreement. Portions of his proffer recording were then provided to the Washington Post, which reported on Chesebro’s recounting the Dec. 16 meeting and other details.^[69] According to the Post’s account, Chesebro told prosecutors that White House Chief of Staff Mark Meadows, Trump’s social media guru Dan Scavino and several attorneys were also in attendance for the Dec. 16 meeting. Chesebro’s revelation is significant – it places the former president in the room with the man who was a chief architect of the fake electors scheme. However, Chesebro’s description of the encounter, as reported by the Post, is curious and warrants additional scrutiny.^[70]

Chesebro reportedly claimed that the Oval Office meeting was merely a “photo op,” even though its participants included several lawyers who were helping Trump challenge the election’s results – that is, overturn the election. Chesebro said Trump asked “four or five questions” toward the end of the meeting. Apparently in response to these questions, Chesebro told Fulton County prosecutors that he summarized his Nov. 18, 2020 memo, which is discussed at length above. The Post reports “it was unclear whether Trump reacted to his analysis.”

But as the discussion above makes clear, the plan set forth in Chesebro’s Nov. 18 memo was superseded by his subsequent writings – namely, his Dec. 6 and Dec. 13 memos, both of which Chesebro authored not more than 10 days before meeting with Trump in the Oval Office. Whereas his Nov. 18 memo was limited to Wisconsin, Chesebro expanded his scheme in his subsequent memos to include several other states. Moreover, in Chesebro’s Nov. 18 memo, the Trump electors’ votes were contingent on a favorable court ruling or the Wisconsin state legislature flipping the state from Biden to Trump. In his later memos, Chesebro dropped any contingencies and recommended submitting the Trump electors’ votes to the relevant officials even though they lacked any legitimacy. In his Dec. 6 and Dec. 13 memos, Chesebro wrote that these false electoral votes could then be used during the joint session of Congress on Jan. 6, 2021 to delay or deny Joe Biden’s legitimate victory. Chesebro argued that the President of the Senate could simply refuse to count Biden’s certified electoral votes.

According to Chesebro’s proffer statement, as reported by the Post, he apparently did not discuss any of this – including his “President of the Senate” strategy – with Trump. That is difficult to understand and warrants further inquiry.

Chesebro also told Fulton County prosecutors that he discussed election litigation in Arizona with Trump. “I briefed him on what my understanding was of what was happening in Arizona,” Chesebro said. Chesebro explained that he “piped up” because he had the “most relevant information” from his communication with an attorney who had been leading the Trump campaign’s litigation efforts in Arizona. This aspect of Chesebro’s proffer warrants additional scrutiny as well. In the federal indictment of Trump, the Special Counsel has alleged that Chesebro and Rudy Giuliani used litigation as a “pretext” to justify the false electors voting in Arizona and New Mexico. For example, the Special Counsel alleges that Giuliani, acting through Chesebro, “suggested that [an] Arizona lawyer [Wilenchik] file a petition for certiorari in the Supreme Court as a pretext to claim that litigation was pending in the state, to provide cover for the convening and voting of [Trump’s] fraudulent electors there.”^[71]

Therefore, we are left with a series of questions concerning the Dec. 16 meeting in the Oval Office: Who were the other lawyers present? Was it really just a “photo op,” or did they discuss their political strategy including for the joint session of Congress? Did Chesebro really only discuss his Nov. 18 memo with Trump, and not the contents of his more recent Dec. 6 or Dec. 13 memos? Or did Chesebro explain how he thought Biden’s victory could be delayed or even denied, and the role of the fake electors in that effort? Did Chesebro discuss with Trump the role of the Vice President, acting as the President of the Senate during the joint session? He had, by that time, already put forth the idea that Pence could refuse to count Biden’s certified electors. Trump himself pressured Pence to do just that in the weeks that followed.

We do know that Chesebro continued to advocate his “President of the Senate” strategy in the weeks immediately following his meeting with Trump.

In a January 1, 2021 email to John Eastman and Boris Epshteyn, Chesebro published a “rough draft” of “Filibuster talking points.” Chesebro stated that the “core objective” for Members of Congress “should be to find a way to prevent the Biden camp from concluding the vote on Jan. 6.” Chesebro asserted that “Biden was not legitimately elected” and claimed his strategy would purportedly show “the illegitimacy of Biden’s election.” He also declared that the state legislatures and the courts (including the Supreme Court) had supposedly “failed to resolve, on the merits, serious contentions, backed by substantial evidence, that in at least 4 States –AZ, GA, PA, and WI – illegal votes were cast & counted in numbers much more than enough to have tipped the balance in favor of Biden & Harris, so that the electoral votes sent in by the governors of those States are not legitimate.” ^[72] He did not offer any evidence of any kind to buttress this sweeping assertion.

Chesebro made it clear, again, that he wanted to circumvent the processes set forth in the Electoral Count Act. Chesebro wrote:

The strategy of the Biden camp to have Biden annointed [sic] President in Congress on Jan. 6, when the electoral votes are to be opened and counted, without ever having this evidence scrutinized, is predicated entirely on the Electoral Count Act of 1887, which sets draconian limits on debating objections to the electoral votes of any particular State – 2 hours max, in each house of Congress, with no Member of Congress speaking for more than 5 minutes. The Democrats mean to use this antiquated act to suppress information regarding the illegalities. ^[73]

Chesebro then offered two ways to get “around” the Electoral Count Act. The first way was a version of his “President of the Senate” strategy, with Chesebro writing:

One way around the Act is for the VP to take the approach of Thomas Jefferson in 1801, and take the position that as President of the Senate, it is his responsibility to count the votes and, in so doing, resolve any disputes concerning them. If he did this, he would not necessarily count the contested States in favor of him and Trump — he might merely say that none of these States can be counted until either the Supreme Court or state legislatures act on pending objections. This would pressure the Supreme Court and state legislatures to act, particularly if he refused even to open the envelopes containing the electoral votes until there was further action on the objections (under the 12th Amendment, only the President of the Senate may open the envelopes.) ^[74]

In the above scenario, therefore, Chesebro would have Pence refuse to count Biden’s certified electoral votes from several states, disenfranchising millions of Americans.

Chesebro offered a second “way” around the Electoral Count Act that involved circumventing its two-hour limitation on debates over any objections to a state’s electoral votes. He offered a few alternatives to get around this time restriction, which he argued would have allowed senators to filibuster and prevent Biden’s certified electoral votes from being counted. Chesebro argued that if the Trump team could maneuver its way round this restriction, “then the VP would know that he could permit the count to go forward under the Act, knowing that doing so would not allow the Biden camp to easily rush through the electoral returns and claim victory.” ^[75]

Also, on January 4, Chesebro forwarded his December 13 memo (discussed above) to Eastman.^[76]

In sum, Chesebro’s false elector scheme was intended to delay or deny the counting of Joe Biden’s certified electoral votes from seven states during the January 6th joint session of Congress. That is, Chesebro sought a way to prevent Biden from being declared President of the United States – even after he had clearly won the popular vote in all the states in question.

Notably, in a federal civil case, Judge David Carter found: “The draft [December 13] memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021. … [T]he memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States.”^[77]

C. Analysis of Chesebro’s Emails

In the days leading up to December 14, 2020, Chesebro emailed Republicans copies of the false electoral certificates he had drafted for seven states, as well as associated documents. Chesebro emailed the documents for: Arizona,^[78] Georgia,^[79] Michigan,^[80] New Mexico,^[81] Nevada,^[82] Pennsylvania,^[83] and Wisconsin.^[84] The documents Chesebro emailed included: (1) instructions for casting the electoral college votes, (2) draft press releases from the state Republican parties, (3) forms for filling elector vacancies, and (4) a cover memo specifying where the paperwork should be sent.^[85]

Chesebro’s emails show that he personally executed the false electors plan, reporting to Giuliani as he did so. Below, the analysis focuses on two key emails involving Georgia’s slate of false electors. The analysis then turns to examining some details from Chesebro’s emails involving the other states’ false slates of electors.

On December 10, 2020, Chesebro sent two emails to David Shafer, the chair of the Georgia Republican Party who also acted as the chair for the Trump-Pence electors. Shafer has been indicted in the Fulton County case. In the first email, Chesebro introduced himself as “one of the lawyers handling the state-court litigation in Wisconsin where, as you may have heard, we plan to have the Trump-Pence electors cast their votes on Monday, Dec. 14.” Chesebro attached a “draft press release” that “would be released only after we file papers in the WI Supreme Court (following an expected loss in the lower court).” ^[86]

Chesebro explained that “[s]everal people with the Trump campaign, including Justin Clark and Nick Trainer, supplied your contact info and asked me to help coordinate with the other 5 contested States.” ^[87] As explained in the section below, Clark distanced himself from Chesebro’s plan because it had “morphed” into something he did not support.

Chesebro explained to Shafer that he had “two memos explaining the rationale for the electors voting on Monday,” adding that he was “preparing drafts of the documents that the electors in Georgia could sign to effect their votes.” ^[88]

In his follow-up email to Shafer on December 10, Chesebro wrote at the outset:

I spoke this evening with Mayor Giuliani, who is focused on doing everything possible to ensure that [sic] that all the Trump-Pence electors vote on Dec. 14. He is hopeful that the Georgia electors will go along with this strategy. ^[89]

Chesebro attached his November 18 memo “sketching the upside of this strategy” and his December 9 memo “on the practical logistics, including issues raised by state-law provisions regarding the Electoral College.” As discussed above, one of those “issues” concerned the possibility of replacing any of the Trump-Pence electors with a substitute. In that event, Chesebro noted, Georgia law required that Governor Kemp ratify the substitution. Chesebro wanted to avoid that scenario.

It is noteworthy that Chesebro did not attach his December 6 memo in his email to Shafer. In that memo, as explained above, Chesebro explained how his false electors scheme was part of a “bold, controversial strategy” to prevent delay or deny the counting of Biden’s certified electoral votes during the joint session of Congress on January 6. Chesebro also made it clear in that memo that his strategy was not contingent upon election litigation in Georgia or any other state. Chesebro also did not attach his December 6 memo to any of the other emails we examine in this section. The December 6 memo had been marked “Privileged and Confidential.”

Chesebro did attach “a draft of the Certificate that might be used on Dec. 14, along with forms to use in filling vacancies, if any might arise.” Chesebro explained that he “drafted these documents based in part on the Electoral College documents filed by Georgia in 2016.” ^[90]

That is, Chesebro drafted the false electoral votes and the form for filling vacancies that are at issue in the Fulton County indictment.

In court filings, Chesebro has recently claimed that the certificates reference to “being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia,” was not false because they “were qualified and elected by the Republican Party” (emphasis in original).^[91] However, the certification documents explicitly referred to the electors being “assembled in accordance with O.C.G.A. 21-2-11,”^[92] which makes it plain that the “persons to be known as electors of President and Vice President of the United States” are “elected” by Georgia voters on Election Day.^[93] Chesebro’s December 9 memo shows he was very familiar with these provisions of the Georgia code. It is incriminating to put forward a post-hoc explanation that is proven to be false.

Chesebro went on to provide instructions for signing and submitting the false electoral votes. He wrote that it was “key” for the “electors to assemble at the appointed time” and then each “personally sign the six (6) duplicate originals, and enclose each of them in an internal envelope, which will be tightly sealed.” He explained that it should labeled on the “outside” with “something like”:

“ELECTORAL VOTES OF THE STATE OF GEORGIA FOR PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES.” ^[94]

That exact language was included on the envelope used to transmit the false electoral college votes and associated documents to the National Archives.^[95]

“This is the envelope that will then be opened only by the President of the Senate on January 6,” Chesebro wrote to Shafer.^[96]

Chesebro’s emails to Republicans in other states included similar language, highlighting the fact that he was working with Giuliani. In a December 11 email to Greg Safsten of Arizona, Chesebro emphasized that he had spoken that evening to Giuliani, “who is focused on doing everything possible to ensure that [sic] that all the Trump-Pence electors vote on Dec. 14.” Chesebro added: “If you think he could help with encouraging your fellow electors to make this happen, please do not hesitate to reach out to me, and I will do my best to get him to follow up.”^[97]

In a December 10 email to Thomas W. King III, General Counsel of the Pennsylvania GOP, Chesebro wrote that he and Giuliani were aware that Pennsylvania law (as in Georgia) required the governor to ratify any substitute electors. Giuliani “understands the potential hurdle posed by the statute requiring that Gov. Wolf give notice to any substitute electors, and he indicated he will make efforts to encourage all 20 Pennsylvania electors to do what they can to make it to the meeting.” Chesebro added that, “as a precaution,” he had “taken the liberty of drafting papers to use to fill in vacancies, and give notice to Governor Wolf.”^[98]

Similarly, in a December 10 email to Jim DeGraffenreid of Nevada, Chesebro wrote: “Mayor Giuliani and others with the Trump-Pence campaign (including Justin Clark and Nick Trainer) asked me to reach out to you and the other Nevada electors to run point on the plan to have all Trump-Pence electors in all six contested States meet and transmit their votes to Congress on Monday, Dec. 14” (emphasis added). DeGraffenreid responded, “Nevada is on board.” Chesebro replied that Giuliani “was glad to hear of your agreement with this strategy.”^[99]

DeGraffenreid asked Chesebro if they should use the certificate of ascertainment he had obtained, which “shows us with less votes than the Biden electors.” Chesebro responded:

No, the COA need not be attached to the electoral votes – the purpose of having the electoral votes sent in to Congress is to provide the opportunity to debate the election irregularities in Congress, and to keep alive the possibility that the votes could be flipped to Trump and Biden.^[100]

This is yet another example of how Chesebro’s plan did not adhere to the 1960 Hawaii example. As mentioned above, after Kennedy’s victory was confirmed via a court-ordered recount, the governor of Hawaii submitted a certificate of ascertainment to the relevant authorities prior to the joint session of Congress. In the above email, and elsewhere, Chesebro argued that a certificate of ascertainment was unnecessary. This again demonstrates that his plan for the false electors was not contingent on election litigation flipping any state prior to January 6. It is also notable that Chesebro’s language suggested the false electors should refrain from including the certificate of ascertainment, though he avoided explicitly recommending to exclude it.

The false electoral votes and associated documents for all seven states are publicly available at the National Archives’ website.^[101] The false certificate of the votes from New Mexico and Pennsylvania include a caveat that the certificates from the other five states, including Georgia, do not. The New Mexico certificate for the Trump-Pence electors notes that they signed the document “on the understanding that it might later be determined that we are the duly elected and qualified Electors for President and Vice President of the United States of America.”^[102]

It appears Chesebro inserted this language himself, and the timing is significant.

On December 12, Chesebro and Giuliani participated in a conference call with the Pennsylvania electors. When the electors expressed concerns, Giuliani “falsely assured them that their certificates would be used only if the Defendant succeeded in litigation,” according to the federal indictment.^[103] The next day, Chesebro sent Giuiliani “an email memorandum that further confirmed that the conspirators’ plan was not to use the fraudulent electors only in the circumstance that the Defendant’s litigation was successful in one of the targeted states,” according to the federal indictment (and consistent with the analysis above of the December 13 memorandum).^[104]

On the afternoon of December 13, Tom King, General Counsel of the Pennsylvania GOP, wrote to James Fitzpatrick, the Trump campaign’s director of Election Day operations in Pennsylvania, and cc-ed Andrew Reilly, one of the Pennsylvania false electors. King expressed concern about criminal liability for the false electors especially given that Chesebro admitted in writing that the plan was “dicey” (an apparent reference to the December 9 memo):

“I’m told that on the call with the Electors they were told that the Ballot form would be conditioned upon ultimate certification by the Governor, indemnification by the campaign if someone gets sued or worse. (charged with something by the AG or someone else) and the receipt by the Electors of a legal opinion by a national firm and certified to be accurate by a Pa. lawyer. What was sent was a “memo” by Chesebro not addressed to the Electors, and no certification by a Pa. lawyer. To make it worse, Chesebro describes the Pa. plan as ‘dicey’. And there’s no indication by anyone with authority that there’s any indemnification authorized by the Campaign.” (emphasis added)^[105]

King added contingency language to the draft documents for Pennsylvania stating that the Republican electoral votes were valid only if a final court order recognized them as such.^[106] The final document read: “WE, THE UNDERSIGNED, 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 for President and Vice President of the United States of America from the State of Pennsylvania.”^[107] King said he added those modifications because “[a]ny document that any lawyer looks at needs to be accurate.”^[108] The Pennsylvania group had to push Trump campaign officials to add the language, according to Sam DeMarco, one of the Pennsylvania false electors and chairman of the Allegheny County Republican Committee.^[109]

In a December 13 email (subject line: “Word documents for New Mexico electors”) sent to Mike Roman, a Trump campaign official who has also been indicted in Fulton County, and Joshua Findlay, a top Trump campaign lawyer, Chesebro wrote: “I added the new qualifying language at the start of the Certificate. Might be good to have it added in all states.”^[110] The New Mexico false certificate’s language was more vague than Pennsylvania’s document. The New Mexico one read: “WE, THE UNDERSIGNED, on the understanding that it might later be determined that we are the duly elected and qualified Electors.”

Other than Pennsylvania and New Mexico, none of the other false electoral certificates included any qualification.

Chesebro apparently recognized an advantage in including some qualifying language in the certificates at least along the lines of New Mexico’s text, but he proceeded ahead with the scheme, with most of the certificates not including any contingency language. The contingency language, in any case, would not be accurate if the intended plan was to submit the certificates regardless of whether the Trump campaign succeeded in litigation or were otherwise unable to obtain governors’ certification.

D. The Trump Campaign’s Top Lawyers Extricated Themselves from Chesebro’s “Alternate Elector” Scheme

The January 6th Select Committee learned that three of the most senior lawyers on the Trump campaign refused to participate in Chesebro’s false elector scheme. They are: Matthew Morgan (General Counsel for the Trump Campaign), Joshua Findlay (Associate General Counsel for the Trump Campaign), and Justin Clark (Deputy Campaign Manager for the Trump Campaign).

1. Trump campaign lawyers supported a “contingent” elector plan.

Morgan and his team initially supported an effort to convene Trump-Pence electors in the six battleground states on December 14, 2020. Morgan performed his own research on the electoral college process and concluded “it would be a sticky situation if the campaign were to win one of its litigation matters in a State after December 14th.”^[111] He concluded the Trump-Pence electors should meet on a “contingent basis.”^[112] In early December, according to Morgan, Trump campaign officials reached out “to the various [Trump-Pence] electors” to “encourage them on a contingency basis to at least cast” their votes. ^[113] It was Morgan’s “initial understanding” that they would “not necessarily submit but cast those votes on the 14th as a contingency for, if litigation, we prevailed in any of the States and the certificate of ascertainment changed.” ^[114]

Morgan testified that he first learned of Chesebro in late November or early December 2020. ^[115] Justin Clark asked Morgan “to look into the matter as a contingency” for the state of Wisconsin. “If somehow the campaign was able to win [litigation] in Wisconsin, then the votes of the electors would be submitted,” Morgan testified. Judge Troupis, an attorney working for the Trump campaign, had active election litigation in Wisconsin at the time. “If Judge Troupis wins his litigation in Wisconsin, then his contingent electors should have voted to be prepared for if there was a switch,” Morgan explained.^[116]

That is, if the Wisconsin courts “switch[ed]” the election’s results, granting Trump victory, then the campaign would have “contingency” electors in place.

Morgan was aware of the Hawaii example from 1960. “If you have a case or controversy that potentially changes the certificate of ascertainment at a later date, you would want to have electors ready,” Morgan told the January 6th committee. “And that was somewhat of an issue, as I understand it, historically,” Morgan added, in the context of discussing the 1960 Hawaii example. “My view in late November, early December was that make sure you have the electors buttoned up and ready to go in case the certificate of ascertainments change after the Safe Harbor date or after the electoral college date.”^[117] Justin Clark viewed the contingent electors plan the same way. “In the event that the litigation was won or … you win the Wisconsin case, Wisconsin goes for Donald Trump, the executive in that state would then send a different certificate of ascertainment to the vice president saying count these votes, not those votes.”^[118]

2. Morgan, Clark, and Findlay rejected Chesebro’s shift from the “contingent electors” to “alternate electors” plan.

Morgan and his team realized at some point in early December that Chesebro’s plan was not the “contingency” they endorsed.^[119] Morgan explained there “was a shift in the analysis in December” (emphasis added).^[120] Morgan recalled reading “an email or a memo or some written communication” that “implied or said that the campaign’s desire was to not just cast the ballots but to proceed with submitting them.”^[121] Morgan explained why he found Chesebro’s plan to be problematic. Chesebro proposed “this idea of alternate electors,” which was different from Morgan’s “initial conception of contingent electors.”^[122] Morgan also recalled that Chesebro’s proposal had a “reference to the Vice President in it.”^[123] At the time, Morgan’s view was the electors should convene on a “contingency basis” to “cast and hold” their votes, but this “shifted to cast and send.”^[124] In Chesebro’s plan, the Trump-Pence electors would be treated as potentially valid on January 6, regardless of whether the Trump campaign won any of their election lawsuits.

Although Morgan did not recall the document in question, his description is consistent with Chesebro’s December 6, 2020 memo, which called for submitting “alternate slates of electors” to the Vice President, among others. As explained above, Chesebro made it clear in his December 6 memo that he proposed submitting the “alternate slates of electors … even if Trump has not managed by then to obtain court decisions (or state legislature resolutions) invalidating enough results to push Biden below 270.”^[125]

Morgan explained how Chesebro’s plan differed from what transpired during the 1960 election in Hawaii. Morgan’s “initial view” was “if litigation after that Safe Harbor date or after the electoral college date had changed the certificate of ascertainment, similar to the 1960 example of Hawaii, then my view was you would have wanted the electors to have cast so that those ballots would be eligible to be [paired] with the certificate of ascertainment.” ^[126] But Chesebro “suggested that we submit them anyways” after the Safe Harbor date^[127] – meaning Chesebro suggested that they submit the “alternate” electors even if the Trump campaign had failed to reverse the outcome in any state as a result litigation. In that event, the Trump-Pence electors would lack a certificate of ascertainment, which Morgan concluded was necessary for them to be considered valid.

Recall that Kennedy was declared the victor in Hawaii in 1960 after a court-ordered recount. At that point, the Governor of Hawaii issued a new certificate of ascertainment saying that Kennedy’s electors were the lawful ones. Morgan concluded that the Trump-Pence electors’ votes would have no legal authority without a similar certificate of ascertainment. As a “practical matter,” Morgan explained, the electors’ votes are submitted to the proper authorities with “certificates of ascertainment” from the states. “[T]ypically the highest elected official, the Governor, signs, the ascertain[ment],” certifying “the success of one presidential candidate or the other in the State.”^[128] Without this “certificate of ascertainment” the electors would be “no good” or “not valid.”^[129] The “vote of an elector without a certificate of ascertainment would not be validly submitted,” Morgan determined.^[130]

Morgan rejected Chesebro’s “alternate” elector plan for another reason. He concluded it would create problems for Vice President Pence on January 6th. “My view of that then was that will be challenging for the Vice President, regardless of my understanding of the law, just politically challenging for the Vice President,” Morgan explained.^[131] Morgan had served as counsel to Pence and he was concerned “at the time” that submitting alternate electors, as Chesebro advocated, would “make the Vice President’s life harder.”^[132] Morgan “didn’t want to be a part of that.” ^[133]

Similarly, Justin Clark explained to the January 6th Committee that Chesebro’s plan “morphed into something I didn’t agree with,” including “doing this like everywhere and doing it with not necessarily duly nominated electors” (emphasis added). Chesebro’s plan “turned into something that wasn’t the original intention of that email or that memo.”^[134] Clark thought it was “stupid” because there was “no contingency whereby their votes are going to be the[sic] counted.”^[135] Clark also thought that Chesebro’s plan included states in which he “didn’t think there was a need for contingent electors” and “couldn’t imagine a situation where a contingent elector’s vote would be counted” (emphasis added).^[136] Clark concluded: “why are we having contingent electors vote if there’s no contingency.”

3. Morgan, Findlay and Clark dissociated from Chesebro’s “alternate” electors plan.

During his deposition before the January 6th Committee, Joshua Findlay explained that Chesebro came on his “radar” around December 11, 2020.^[137] At the time, Giuliani – and not Morgan – was “making a lot of decisions about litigation strategy.” Chesebro was “aggressively promoting” alternative legal theories.^[138] Giuliani “really bought into” Chesebro’s theory on the electors, and the two of them were the “main ones driving” it.^[139]

Findlay said they viewed the Trump-Pence electors as being contingent on a lawsuit filed by the Attorney General of Texas alleging that the states of Georgia, Michigan, Pennsylvania, and Wisconsin had illegally conducted their elections.^[140]  Once it became clear, on December 11th, that the Supreme Court turned down the case, Findlay and Morgan made plans to “wrap up this operation,” meaning the contingency electors plan.^[141] At that point, according to Findlay, they decided they “were not going to be working on this operation anymore” and would “pass it off to Ken Chesebro.”^[142]

According to Findlay, Morgan told him that “Rudy wants to keep fighting this thing” and “wants Ken to be doing this.”^[143] While Morgan did not want to be part of the electors effort any longer, Giuliani offered the “opposite recommendation” and “was on the opposite side of this.”^[144]

According to Findlay, Morgan concluded that “the litigation was over so it doesn’t seem like a good idea for us to be involved in it” (emphasis added).^[145]

Justin Clark said, “I’m out,” and encouraged his legal colleagues to do the same.^[146] Morgan testified, “I had Josh [Findlay] email Mr. Chesebro politely to say this is your task. You are responsible for the [E]lectoral [C]ollege issues moving forward. … And this was my way of taking that responsibility to zero.”^[147]

Findlay recalled a conversation he had with Chesebro around this time. Although Findlay did not recall “a lot of details” from their talk, he did remember telling Chesebro “look, this is on you, right?”^[148]

Findlay added: “I just said, you know, you need to do what you need to do here. This is not our operation anymore.”^[149]

Chesebro then carried out the false electors scheme.

E. Run-up to the “Wild” Jan. 6.

In an email exchange with Eastman on December 24, 2020, Chesebro wrote that the “odds of action” by the Supreme Court “before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”^[150] Chesebro’s use of the word “wild” was an apparent reference to Donald Trump’s tweet from just five days earlier calling for his supporters (“Be there. Will be wild!”) to join a protest in Washington, D.C. on January 6. Chesebro also argued that filing an election challenge with the Supreme Court could feed “the impression that the courts lacked the courage to fairly and timely consider these complaints, and justifying a political argument on Jan. 6 that none of the electoral votes from the states with regard to which the judicial process has failed should be counted.”^[151] Chesebro conceded that they had only a “1 percent” chance of winning the suit, which was apparently focused on Wisconsin. But, according to the New York Times, Chesebro argued that the “relevant analysis” “is political.”^[152]

On the evening of January 5th, Chesebro apparently attended a stop the steal rally on Freedom Plaza, according to video footage obtained by CNN.^[153] The rally included speeches by the more fringe allies of Trump, including Alex Jones, Roger Stone, Ali Alexander, and Mike Flynn.^[154]

According to extensive video footage obtained by CNN, Chesebro also personally joined the “wild” events of January 6. For an extended period of time, he walked alongside InfoWars conspiracy theorist Alex Jones around the grounds of the U.S. Capitol.^[155]

January 6th had marked a significant shift in Chesebro’s plans. In his November 18 memo, Chesebro wrote: “the real deadline for a finding by the Wisconsin courts (or, possibly, by its Legislature) in favor of the President and Vice President” is January 6th. But in the days running up to January 6th, Chesebro’s plan was to ignore the real deadline and to prevent the vote count from being concluded – despite the glaring absence of courts or state legislatures (let alone governors’ ascertainments) in Trump’s favor.

We turn now to the legal consequences of that and Chesebro’s other conduct–starting with the crime to which Chesebro pleaded guilty.

III. Legal Analysis

A. Count 15: Conspiracy to File False Documents (O.C.G.A. §§ 16-4-8 and 16-10-20.1(b)(1))

Chesebro pleaded guilty to one felony for conspiring to file a false document. This crime, charged as Count 15 against him and other co-conspirators including Trump, centered around the false electoral certificate. That documentation was also the basis for Counts 9 (Conspiracy to Impersonate a Public Officer), 11 (Conspiracy to Commit Forgery in the First Degree), and 13 (Conspiracy to Commit False Statement & Writings). The State has also alleged that the submission of this document–titled “CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA”–was an overt act to effect the object of the alleged conspiracy (including the RICO conspiracy alleged in Count 1, as we detail in the next section).^[156] As indicated by the factual analysis in the preceding section, the filing of this document–which Chesebro has now acknowledged was false–was critical to the overarching fake electors scheme.

In this Section III.A, we outline the elements of this crime and the potential impact Chesebro’s plea will have on the other defendants’ cases in Georgia and potentially on his and their cases in other jurisdictions with analogous criminal statutes.

1. Legal Elements of Conspiracy to File False Documents

To prove a defendant guilty of conspiracy to commit a crime in Georgia, the State must prove the defendant “together with one or more other persons, conspire[d] to commit any crime and any one or more of such persons d[id] any overt act to bring about the object of the conspiracy.”^[157] “A conspiracy is an agreement between two or more persons to do an unlawful act, and the existence of a conspiracy may be established by proof of acts and conduct, as well as by proof of an express agreement.”^[158]

There is no pattern jury instruction in Georgia for section 16-10-20.1, but the statute is straightforward. A person commits the offense of false statements and writings if she knowingly files, enters, or records a document as a public record while “knowing or having reason to know”^[159] the document is false or contains a materially false statement.

Chesebro, by pleading guilty to this crime, has admitted to all the elements of the charge in Count 15.^[160] Therefore, Chesebro has acknowledged that:

(1) he conspired with one or more other persons to file the fake electoral certificate;

(2) he knew or had reason to know the certificate was false or contained a materially false statement; and

(3) one or more of the conspirators committed an overt act in furtherance of the conspiracy.

Upon conviction at trial, the offense is punishable as a felony with imprisonment of not less than one nor more than ten years, a fine not to exceed $10,000, or both.^[161] Chesebro, in agreeing to plead guilty to Count 15, will receive 5 years of probation (which can be knocked down to 3 for good behavior) and pay a $5,000 fine, in exchange for agreeing to testify truthfully at trial and turn over any outstanding documents and evidence to the prosecution.

2. Consequences of Chesebro Pleading Guilty to Count 15

By pleading guilty to this crime, Chesebro has now explicitly admitted that he knew (or had reason to know) that the electoral certificate was false, i.e., that the electors listed were not the duly elected and qualified electors. This admission is important toward proving the crimes alleged in Count 15 against other defendants, and toward establishing the overall scheme at the core of all the charges in the indictment.

Chesebro could be an important witness against the other defendants named in this Count: Donald Trump, Rudy Giuliani, John Eastman, Ray Stallings Smith III, Robert Cheeley, and Michael Roman. The state will likely be able to prove Elements 1 and 3 against all of the defendants charged with relative ease–indeed, Chesebro could testify directly to these facts. He can also likely outline what made the electoral certificate false–and, through his explanation, may be able to help the State prove why the other defendants also knew or should have known that the document was false. Moreover, given his direct interactions with Giuliani and Eastman, Chesebro may be able to provide significant evidence as to their mens rea–crucial for Element 2–with regard to this Count. As for Element 2 specifically, the State can potentially establish that the defendant(s) should have known the document was false based simply on the objective standard of an ordinarily careful person. Chesebro’s testimony could assist the State in establishing that the relatively low standard was met by the other defendants.

Chesebro might also provide impactful testimony against those charged under Count 14 for Criminal Attempt to Commit Filing False Documents under O.C.G.A. §§ 16-4-1, 16-10-20.1(b)(1): David Shafer, Shawn Still, and Cathleen Latham. These are the three individuals that the State alleges attempted to submit the false electoral certificates, in cahoots with their co-conspirators listed in Count 15.

Count 15 is necessarily related to proving the elements of Count 1, the RICO Conspiracy–which we discuss in detail in the next section. This is important because Count 1 encompasses the entirety of the alleged scheme to overturn the election results in Georgia. There is significant inculpatory evidence upon which the State can rely–which could be supplemented by Chesebro’s testimony or documentary evidence–to argue that the other defendants joined a conspiracy which itself contained a common plan or purpose to commit two or more acts of racketeering activity. Even if the jury finds that some of the alleged racketeering acts were not committed, as long as a jury concludes beyond a reasonable doubt that the conspiracy contained a common plan or purpose to commit at least two acts of racketeering activity, the State will have met its burden on that score. Chesebro pleading guilty to Count 15 goes some way, on its own, toward proving that element.

B. Count 1: RICO Conspiracy (O.C.G.A. § 16-14-4(c))

In this Section, we analyze the elements of the most significant crime charged against Trump and the other co-defendants, violating the Georgia RICO Act. We then explain–based on the facts Chesebro has now admitted to and the publicly available evidence–how Chesebro fits into the conspiracy charge and can bolster the State’s prosecution of the other co-conspirators. Although Chesebro did not plead guilty to Count 1, he can if he testifies truthfully and consistently with the documentary record provide the state with testimony and evidence pertaining to the overarching scheme he engaged in–which led to the criminal actions he pleaded guilty to in Count 15. The State could of course also prove these elements with or without Chesebro’s cooperation, but his truthful testimony would provide a considerable additional ammunition as we detail below.

1. Legal Elements of the RICO Conspiracy Under Georgia Law

In Count 1, the State of Georgia charged Chesebro and all the other co-defendants with violating Georgia’s law that criminalizes conspiring to violate Georgia’s RICO Act, O.C.G.A. § 16-14-4(c). Section 16-14-4 is set out below in its entirety:

(a) It shall be unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.

(b) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

(c) It shall be unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. A person violates this subsection when:

(1) He or she together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy; or

(2) He or she endeavors to violate any of the provisions of subsection (a) or (b) of this Code section and commits any overt act to effect the object of the endeavor.

O.C.G.A. § 16-14-4.

To convict a defendant under O.C.G.A. § 16-14-4(c), the State must prove beyond a reasonable doubt that the defendant knowingly and willfully^[162] conspired with one or more persons^[163] to conduct or participate in, directly or indirectly, an enterprise through a pattern of racketeering activity while associated with that enterprise,^[164] and any one or more of such persons committed an overt act to effect the object of the conspiracy.^[165]

The Court of Appeals of Georgia has explained this as follows:

A “racketeering activity,” also known as a “predicate act,” is the commission of, the attempt to commit, or the solicitation or coercing of another to commit, a “crime which is chargeable by indictment” under one of forty categories of offenses. OCGA § 16–14–3(9)(A)(i)–(xli). And a “pattern of racketeering activity” means that there have been at least two acts of racketeering activity that are interrelated and that were done “in furtherance of one or more incidents, schemes, or transactions. OCGA § 16–14–3(8)(A). Additionally, it is unlawful to conspire to violate the substantive provisions of Georgia’s RICO Act. OCGA § 16–14–4(c). Under Georgia law, a person may be found liable for RICO conspiracy “if they knowingly and willfully join a conspiracy[, or enterprise,] which itself contains a common plan or purpose to commit two or more predicate acts.” (Citation omitted.) Rosen v. Protective Life Ins. Co., 817 F.Supp.2d 1357, 1382(II)(G) (N.D.Ga.2011) (applying the Georgia RICO statute).^[166]

Under Georgia law the trial judge is not required to define for the jury the terms “knowingly” and “willfully” because they are ordinary terms found in common usage and understood by people of common and ordinary experience.^[167] “Knowing” is defined in common usage as “having or reflecting knowledge, information, or intelligence,”^[168] while “willful” is defined as “done deliberately” or “intentional.”^[169] In other words, the State must prove that the defendants knew they were joining a conspiracy which itself contained a common plan or purpose to commit two or more predicate acts; the defendants cannot be convicted if they unwittingly or accidentally joined such a conspiracy.

Here, the indictment’s allegations add specificity to the elements. Most significantly, the indictment charges that the defendants “knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.”^[170] The indictment further alleges that the conspiracy “contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states.”^[171] More specifically, the indictment charges that one or more members of the conspiracy committed acts of racketeering activity “including, but not limited to, false statements and writings, impersonating a public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, computer invasion of privacy … acts involving theft, and perjury.”^[172] In fact, Chesebro has now already pleaded guilty, in Count 15, to conspiring to commit filing false documents–one of the steps taken in the course of the alleged RICO conspiracy. ^[173] Moreover, the indictment charges that “the Defendants and other members and associates of the enterprise committed [more than 160] overt acts to effect the objectives of the enterprise.”^[174]

The indictment alleges this was done with the purpose of disrupting the January 6 meeting of Congress so as to change the outcome of the election:

[m]embers of the enterprise, including several of the Defendants, created false Electoral College documents and recruited individuals to convene and cast false Electoral College votes at the Georgia State Capitol, in Fulton County, on December 14, 2020. After the false Electoral College votes were cast, members of the enterprise transmitted the votes to the President of the United States Senate, the Archivist of the United States, the Georgia Secretary of State, and the Chief Judge of the United States District Court for the Northern District of Georgia. The false documents were intended to disrupt and delay the joint session of Congress on January 6, 2021, in order to unlawfully change the outcome of the November 3, 2020, presidential election in favor of Donald Trump. Similar schemes were executed by members of the enterprise in Arizona, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.”^[175]

Thus, if the State can prove that the defendants joined a conspiracy to criminally cause the casting and sending of false Electoral College votes “to disrupt and delay the joint session of Congress on January 6, 2021, in order to unlawfully change the outcome of the November 3, 2020, presidential election in favor of Donald Trump,” then it will have proven they joined a conspiracy which itself contained a common plan or purpose to commit two or more acts of racketeering activity as the indictment alleges.^[176]

In sum, in this case, the three elements of the offense of RICO conspiracy that the State must prove beyond a reasonable doubt at trial to obtain a conviction are:

Element 1: The defendant knowingly and willfully

Element 2: joined a conspiracy (A) to unlawfully change the outcome of the election in favor of Trump^[177] (B) which itself contained a common plan or purpose to commit two or more acts of racketeering activity; and

Element 3: any one or more of the conspirators committed an overt act to effect the object of the conspiracy.

Under Georgia law, the defendants can potentially be convicted of RICO conspiracy even if they committed no crime other than the three elements outlined above.^[178] Thus, it is not necessary for conviction on Count 1 for any of the defendants to have committed the other crimes with which they are charged or that they caused the conspiratorial enterprise to be one that (A) sought to unlawfully change the outcome of the election in favor of Trump and (B) itself contained a common plan or purpose to commit two or more acts of racketeering activity.^[179]

In fact, the indictment alleges eight separate items under the heading “MANNER AND METHODS OF THE ENTERPRISE.”^[180] Many of these are not necessarily directly related to each of the defendants, which appears to demonstrate that the enterprise involved requisite features (A) and (B).^[181] Thus, to the extent the State can prove the allegations in one or more of these eight methods of furthering the goals of the enterprise beyond a reasonable doubt, it may in turn be able to prove that each of the defendants knowingly and willfully joined an enterprise that exhibited features (A) and (B).^[182] However, Chesebro has now already pleaded guilty to Count 15; an admission upon which the State will continue to build its RICO case against the other conspirators. Because this article focuses on Chesebro’s role and its impact on the other defendants, it does not analyze the evidence in support of those “manner and methods” in which he did not significantly participate. ^[183] Instead, we consider the evidence of Chesebro’s role where he was principally involved: in carrying out the third alleged manner and method of the conspiratorial enterprise: “Creation and Distribution of False Electoral College Documents.”^[184]

2. Count 1: The Application of the Law to the Facts

The publicly available evidence indicates that the State has a substantial prospect of proving all three elements beyond a reasonable doubt against Trump and the other co-defendants. Building upon the publicly available evidence we have outlined in Section II, we demonstrate here how the testimony and evidence Chesebro may provide as part of his plea deal could provide further support for each of the elements of the RICO allegations. Though, once again, we emphasize the State apparently would not need his testimony, as it was prepared to convict him without it.

As an initial matter, it is very likely that the State will be able to prove Elements 1 and 3. That is because there is little doubt that Chesebro and the other co-defendants knowingly and willfully joined an enterprise and one or more members of the enterprise committed an overt act to effect the object of the enterprise.

With respect to Elements 1 and 3, the prosecution will seek to show that the defendants were working with one or more of their co-defendants on matters related to the 2020 presidential election during the period charged in the indictment of November 4, 2020, through September 15, 2022.^[185] As detailed in Section II above, as for Chesebro, he authored memoranda and other documents that he sent to co-defendants, edited the work of at least one co-defendant, otherwise communicated and worked with co-defendants, including meeting with Trump in the White House. These acts show that he agreed to work with others regarding the election results in Georgia and other states and that he did just that. Indeed, Chesebro has filed motions admitting that he wrote memoranda and provided additional research and input to the Trump campaign concerning legal questions related to the election.^[186]

Thus, the pivotal question is whether the State will be able to prove Element 2 beyond a reasonable doubt; in other words, whether the State will be able to prove that the enterprise Chesebro joined was a conspiracy (A) to unlawfully change the outcome of the election in favor of Trump (B) which itself contained a common plan or purpose to commit two or more predicate acts of racketeering activity. Prosecutors may use Chesebro himself, or at least evidence of his course of conduct, to establish this element against his co-defendants. If the prosecutors succeed, it does not matter whether he had direct contact with the co-defendants (as was the case for example with Giuliani) or not (as was the case for example with Trump). As an initial matter, in the wake of the plea deal and recorded proffer, Chesebro attorney Scott Grubman admitted publicly that Chesebro “never believed in ‘the Big Lie’” and concedes that Joe Biden is the duly elected president of the United States.^[187]

3. Evidence that Chesebro Joined a Conspiracy to Unlawfully Change the Outcome of the Election in Favor of Trump

a. The Alleged Unlawfulness of Chesebro’s Plan Under Federal Election Law

A recent report by Matthew Seligman published in Just Security^[188] explains that Chesebro’s fake electors scheme was unlawful under the applicable federal election law. According to the report:

The Twelfth Amendment, the Electoral Count Act of 1887, and related provisions of federal law contemplate the submission of certificates from multiple slates of elector-nominees from the same state only in exceptionally narrow circumstances. Multiple slates of elector-nominees are consistent with federal law only when:

• On the date the elector-nominees must cast their ballots in the Electoral College, a good faith dispute about which slate of elector-nominees the state has lawfully appointed remains pending; and
• The elector-nominees cast ballots that purport to be the state’s votes in the Electoral College as part of a course of conduct (1) seeking to resolve the contest through the lawful procedures established for the resolution of disputes about the appointment of electors under state law, and (2) seeking for Congress to count those electoral votes pursuant to the lawful application of the provisions of the Electoral Count Act.^[189]

The report by Seligman meticulously details the facts and law in its over 60 pages. It concludes that those two criteria were not met and that “Mr. Chesebro’s legal positions were so lacking in any legal or historical basis that no reasonable attorney would propose them as part of a lawful plan. Because these plans violated the Twelfth Amendment, the Electoral Count Act of 1887, and related provisions of federal law, Mr. Chesebro’s conduct was not lawful under federal election law.”^[190]

Building on Seligman’s work, we now review the evidence, provide additional analysis of our own, and fit it into the RICO framework.

b. The Evidence of Chesebro’s Conduct and Intent

As described in Section II above, Chesebro authored memoranda dated November 18, December 6, December 9, and December 13, 2020, setting forth his fake electors strategy. Initially, Chesebro proposed that the Trump-Pence electors in Wisconsin meet and cast their votes on December 14, 2020, as a contingency plan in case a court decision or the state legislature changed the winner of the presidential election in the state from Biden to Trump “by January 6.” But his plan changed drastically to encompass Georgia and five other states^[191] and, significantly, to eliminate the contingent nature of the plan. The State can contend that much evidence demonstrates that Chesebro’s plan for fake Trump electors to be submitted to the relevant officials and used in Congress, even absent a court ruling or state legislative determination that Trump was the winner of the state’s presidential election, was unlawful. Moreover, Chesebro, having already pleaded guilty to conspiring to file false documents, has now acknowledged that the electoral certificates submitted by the fake Trump electors were false; and he will also have to hand over any further evidence pertaining to the scheme that the State, or the public, does not now possess. However, the evidence we have already seen–including Chesebro’s memoranda that have already been uncovered– allow the State to powerfully argue the unlawfulness of the plan he and his alleged co-conspirators engaged in.

1) Chesebro’s Own Writings Indicate that his Plan was Unlawful, in Violation of the Electoral Count Act and Otherwise, and that he Knew it.

i) Chesebro’s December 6 Memorandum

First, the State can argue that the memoranda and other writings Chesebro authored indicate that his plan was unlawful – and that he knew it. The December 6 memorandum, in particular, provides powerful evidence of Chesebro’s awareness. In the memo, he opined that his legal theory was “bold” and “controversial,” and the Supreme Court would “likely” reject it.^[192] Meanwhile, he also wrote that “there should be messaging that presents this as a routine measure” – a suggestion contrary to his expressed personal legal judgment.

In Chesebro’s December 6 memo, he drastically changed course and advocated for Trump electors even if the courts and state legislature did not reverse the election’s results in any state. Here, Chesebro plainly stated his intent, writing that “it seems feasible that the Trump campaign can prevent Biden from amassing 270 electoral votes on January 6, and force the Members of Congress, the media, and the American people to focus on the substantive evidence of illegal election and counting activities in the six contested States” and “send in the certificates containing their votes” to the relevant officials. Simply put, the goal was to prevent Biden’s certified electoral votes from several states from being counted during the joint session of Congress, contrary to the Electoral Count Act and the Constitution.

In the December 6 memo, Chesebro envisioned the false slates of electors as crucial to disrupting Biden’s victory – as opposed to his previous position (expressed in his November 18 memo, which is analyzed below) that the Trump-Pence electors would merely exist as a contingency in case a court or state legislature overturned the election results after December 14. Chesebro wrote that “it is important that the alternate slates of electors meet and vote on December 14 if we are to create a scenario under which Biden can be prevented from reaching 270 electoral votes, even if Trump has not managed by then to obtain court decisions (or state legislative resolutions) invalidating enough results to push Biden below 270.” Therefore, the Trump-Pence electors signed false certificates to “create a scenario” to block or delay Biden’s victory on January 6. In that same memo, Chesebro wrote, “I believe that what can be achieved on January 6 is not simply to keep Biden below 270 electoral votes. It seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count unless and until Biden can obtain a favorable decision from the Supreme Court.” (emphasis in original).

Notably, Chesebro omitted this inculpatory December 6 memo from his emails to relevant state participants in the scheme in Georgia despite attaching his other memos to those emails. In fact, this memo had not been publicly revealed until after Special Counsel Jack Smith’s indictment was unsealed in August of 2023. This memo was not included in Georgia’s indictment. Now, Chesebro must hand over this crucial memo–and all other potentially inculpatory documents and communications. All of this is significant, because this is the memo in which the contradiction between Chesebro’s private thoughts and public rhetoric are most laid bare. The State can contend that a desire to keep this memo hidden provides additional evidentiary support to prove Chesebro knew his scheme was unlawful and thereby helps to prove Element 2 and, again, the State may get Chesebro to testify as to why he kept this memo secret.

ii) Chesebro’s November 18 Memorandum

The State can utilize the November 18 memorandum to further illuminate Chesebro’s intent. When viewed in the context of Chesebro’s ensuing writings and actions, the State can show how Chesebro’s proposals would ultimately dramatically change to the explicitly unlawful procedures he began to articulate in December. Moreover, it shows a continuity of approach by Chesebro – creating shifting legal justifications in pursuit of his ultimate aim: ensuring that Donald Trump would be installed as president and denying the certification of Joe Biden’s victory on January 6, 2021 – which led to his even more extreme proposals.

iii) Chesebro’s December 9 Memorandum

The State can further contend that Chesebro’s December 9 memorandum also indicates he knew his non-contingent fake elector scheme was unlawful. He admitted in this memo that his plan was “somewhat dicey” in Georgia because he recognized any substitute electors would legally require Governor Brian Kemp’s ratification, which Chesebro accurately anticipated would not be forthcoming. The Trump-Pence electors were first selected in March 2020. Under Georgia law, the governor is required to ratify any substitute electors chosen after that initial selection. Four substitute Trump-Pence electors signed the false electoral certificates for Georgia, but Governor Kemp did not ratify their selection. In fact, two of the charges in the indictment stem from the submission of a document titled “RE: Notice of Filling of Electoral College Vacancy,” which listed the elector substitutions. The document was submitted to the National Archives pursuant to Chesebro’s advice even though Kemp did not sign it or ratify the substitute electors. Chesebro identified similar legal deficiencies in the procedures false electors followed in other states, yet he nonetheless was involved in submitting their false certificates to federal and state officials.

iv) Chesebro’s December 13 Memorandum

The State can argue that Chesebro’s December 13 memorandum also suggests both that his plan was unlawful and that he understood its illegality. In this memo to Rudy Giuliani,^[193] Chesebro outlined his “President of the Senate” strategy – which he, yet again, admitted was “hugely controversial.” The State can posit that this admission is further evidence that Chesebro knew he had gone far beyond viewing the false Trump-Pence electors as a contingency plan and thus his plan was unlawful. This evidence–and any additional testimony Chesebro provides–may directly implicate Giuliani in the conspiracy. In fact, fellow attorney and co-defendant John Eastman admitted that all nine U.S. Supreme Court Justices would reject a similar strategy.^[194]

In this memo, Chesebro argued that the President of the Senate should unlawfully assume powers that are not granted by the Constitution or other law. Chesebro proposed that Vice President Pence recuse himself from the January 6 joint session of Congress and then a Republican Senator, acting as President of the Senate, could refuse to count the certified electoral votes from several states, including Georgia. This was part of his plan to unlawfully disrupt or delay the certification of Biden’s victory. In one of the most breathtaking passages, Chesebro advised that the President of the Senate could disregard court decisions because he “can make his own judgment” that state courts “violated due process.” The memo defended the unlawful position that the President of the Senate could exercise “the sole power to count electoral votes, and anything to the contrary in the Electoral Count Act is unconstitutional.” Moreover, Chesebro provided no historical precedent or legal basis for his unlawful proposal that the President of the Senate could declare that for the Arizona electoral votes to be counted “[Arizona] has to rerun the election, or engage in adequate judicial review, or have the legislature appoint electors.”

Chesebro further indicated in this memo that he knew his plan violated the Electoral Count Act and would have led to a constitutional crisis. If the Supreme Court did not step in and rule for Biden, Chesebro suggested that the President of the Senate could continue to refuse to count the electoral votes and Congress would not certify a winner of the presidential election. Then, either then-Speaker Nancy Pelosi would become the “acting president” on January 20, or Pence could be reelected as vice president and subsequently become president on January 20. Chesebro acknowledged that this situation “would seem messy and unpalatable to many” – but he saw a scenario in which “it doesn’t seem fanciful to think that Trump and Pence would end up winning the vote after some [state] legislatures appoint electors.” He also proposed a negotiated solution wherein Trump would not win, but Biden and Harris would be denied their rightful certification – and so the result would be a Pence presidency.

Significantly, Chesebro wrote that these “outcomes” “seem[ed] preferable to allowing the Electoral Count Act to operate by its terms.” The State can contend that this appears to be an explicit admission by Chesebro that he advocated action that was unlawful under the Electoral Count Act. In fact, in this memo and a January 1, 2023 email, Chesebro presented two separate ways “around” the Electoral Count Act. The first was the President of the Senate strategy; the second was a variety of avenues by which the Act’s two-hour limitation on debates could be circumvented. And these proposals were not one-off suggestions subsequently discarded; Chesebro forwarded the memo to attorney and co-defendant John Eastman on January 4. Chesebro will have to provide further evidence surrounding the additional communications he had with Eastman and others surrounding these proposals throughout the post-election period, up to and including January 6, 2021. The State can argue this provides strong evidence to help prove Chesebro’s scheme was unlawful in satisfaction of Element 2.

v) Chesebro’s Fake Electoral College Documents

The State can also argue that Chesebro’s failure to add language to Georgia and other states’ false Electoral College documents caveating them as contingent (on a later lawful determination that the fake electors became the duly elected and qualified electors), despite some electors requiring such a caveat to participate, also evidences that his scheme was unlawful and he knew it. These certificates are central to Count 15. The documents were at the heart of the overarching fake electors scheme, which constitutes a significant element of the RICO charge. Chesebro has already pleaded to the fact that the documents in question–which he conspired to file–were false.

Shortly before December 14, Chesebro personally drafted and distributed copies of the false electoral certificates for seven states, including Georgia.^[195] At the time Chesebro distributed the false Electoral College documents, his plan was not contingent on the Trump campaign winning election litigation in Georgia or elsewhere prior to January 6. Nor was it contingent upon any state legislature appointing the Trump-Pence electors prior to that date.

Significantly, the fake electors in Pennsylvania expressed concerns with Chesebro’s plan that they sign a document stating they were the duly elected and qualified electors when they knew that was false.^[196] They likely did not want to end up charged with state crimes like Chesebro and his co-defendants. In fact, like the most senior Trump lawyers who refused to participate in Chesebro’s plan discussed above, some electors allegedly refused to continue participating in Chesebro’s scheme despite a proposal in response to the concerns to add conditional language to the document indicating the plan was for contingent electors.^[197]

Furthermore, it appears Chesebro himself directly responded to similar concerns in New Mexico. Chesebro added language caveating the false electoral documents in New Mexico as contingent; the New Mexico certificate noted that the electors signed the document “on the understanding that it might later be determined that we are the duly elected and qualified Electors for President and Vice President of the United States of America.” Chesebro wrote to co-defendant Michael Roman that it “[m]ight be good to have [this language] added in all states.” However, neither Chesebro nor anyone else ever did this, and the Georgia certificates did not contain this qualification.

The State can argue that this reveals Chesebro’s apparent knowledge of the importance of indicating that the electors were contingent in order to approach complying with the law, including but not necessarily limited to those criminal laws defendants in this case are accused of breaking, and to mislead the fake electors to ensure they would participate in the scheme, which was not actually a contingent one. The state can further contend that the fact that Chesebro explicitly considered adding caveating language in the Georgia Electoral College paperwork making it clear that the electors were contingent ones but then proceeded in Georgia without him or anyone else including this caveated language is further evidence that Chesebro knew his plan was unlawful.

It is notable that the one count Chesebro pleaded guilty to was conspiracy to file false documents. As we have explained, this crime was central to the entire conspiracy that Count 1 alleges. And Chesebro, as the drafter of these certificates and key player, has now admitted that he knew or had reason to know that these documents were false, and will have to testify to that against each of the other co-defendants.

vi) Chesebro’s December and Early January Emails

Finally, the State can argue that in emails Chesebro sent to co-defendant John Eastman and Trump campaign adviser Boris Epshteyn in December of 2020 and early January of 2021, Chesebro revealed he was not engaged in suggesting lawful legal strategies but rather proposed unlawful political schemes. For example,

On Dec. 24, 2020, Kenneth Chesebro and other lawyers fighting to reverse President Donald J. Trump’s election defeat were debating whether to file litigation contesting Joseph R. Biden Jr.’s victory in Wisconsin, a key swing state. Mr. Chesebro argued there was little doubt that the litigation would fail in court — he put the odds of winning at “1 percent” — as Mr. Trump continued to push his baseless claims of widespread fraud, according to emails reviewed by The New York Times. But the “relevant analysis,” Mr. Chesebro argued, “is political.”^[198]

The New York Times went on to explain that

Rather than considering just the law and the facts of the case, Mr. Chesebro made clear he was considering politics and was well aware of how the Trump campaign’s legal filings could be used as ammunition for Republicans’ efforts to overturn the results when Congress met to certify the Electoral College outcome on Jan. 6, 2021. “Just getting this on file means that on Jan. 6, the court will either have ruled on the merits or, vastly more likely, will have appeared to dodge again,” Mr. Chesebro wrote in the email chain. He added that a lack of action by the Supreme Court would feed “the impression that the courts lacked the courage to fairly and timely consider these complaints, and justify[] a political argument on Jan. 6 that none of the electoral votes from the states with regard to which the judicial process has failed should be counted.” Of the chances of success, Mr. Chesebro estimated the “odds the court would grant effective relief before Jan. 6, I’d say only 1 percent.” But he wrote the filing has “possible political value.” . . . . He said the legal filings could produce a “political payoff” to bolster the argument that “there should at least be extended debate in Congress about election irregularities in each state.” He added that “the public should come away from this believing that the election in Wisconsin was likely rigged, and stolen by Biden and Harris, who were not legitimately elected.”^[199]

The State can argue Chesebro’s focus in private emails on “a political argument on Jan. 6 that none of the electoral votes from the states with regard to which the judicial process has failed should be counted” demonstrates his scheme unlawfully sought to disrupt or delay the certification of Biden’s victory on January 6. It can further argue that just as Chesebro attempted to use litigation for political purposes, he attempted to use unlawful false electors for unlawful political purposes.

In a separate January 1, 2021 email to co-defendant Eastman and Trump campaign adviser Boris Epshteyn, Chesebro declared that Biden “was not legitimately elected” and that the certified Biden-Harris electoral votes “are not legitimate.” He offered a strategy “to find a way to prevent the Biden camp from concluding the vote on Jan. 6.” The State can argue this demonstrates Chesebro intended to use the fake elector documents “to disrupt and delay the joint session of Congress on January 6, 2021, in order to unlawfully change the outcome of the November 3, 2020, presidential election in favor of Donald Trump”^[200] and thus his scheme was unlawful.

It seems reasonable to assume that the State had not possessed every piece of Chesebro’s communications from this period. However, as part of his plea deal, now he will have to turn all of this over to the Fulton County prosecutors–thus providing potentially important evidence against the other co-defendants.

2) Even the Other Top Lawyers for Trump and his Campaign Had Significant Concerns Regarding Chesebro’s Plan.

The State can also point to the contemporaneous reactions of other lawyers for Trump to Chesebro’s fake elector scheme to support its argument that the strategy was unlawful. For example, the significant transformation from a contingent elector plan to a fake elector plan was so concerning to three of the most senior lawyers employed by the Trump campaign (General Counsel Matthew Morgan, Deputy Campaign Manager Justin Clark, and Associate General Counsel Joshua Findlay) that all three lawyers refused to participate in the fake elector plan; in fact, Morgan directed Findlay to create a written record making it clear they would have nothing to do with it, and Clark asked why they were having contingent electors vote if there was no possible contingency.^[201] Moreover, the two top lawyers in the White House Counsel’s Office, Pat Cipollone and Pat Philbin, considered the effort to convene slates of electors in the states that Trump lost to be one of the “bad theories” that required them to play “whack-a-mole.”^[202]

Similarly, in a December 8, 2020 email, an attorney who worked for the Trump campaign in Arizona named Jack Wilenchik acknowledged that the Trump-Pence electors’ votes would not be “legal under federal law,” because they lacked a certificate of ascertainment signed by the governor and would therefore be “fake.”^[203] But Wilenchik nonetheless endorsed Chesebro’s scheme. Wilenchik recorded all this in written correspondence following his conversation with Chesebro. He wrote:

I just talked to the gentleman who did that memo, [Chesebro]. His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law – because they’re not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th. (They could potentially argue that they’re not bound by federal law because they’re Congress and make the law, etc.) Kind of wild/creative –I’m happy to discuss. My comment to him was that I guess there’s no harm in it, (legally at least) –i.e. we would just be sending in “fake” electoral votes to Pence so that “someone” in Congress can make an objection when they start counting votes, and start arguing that the “fake” votes should be counted.

In a subsequent email obtained by The New York Times, Wilenchik wrote that “‘alternative’ votes is probably a better term than ‘fake’ votes” and added a smiley face emoji.

Thus, the State has evidence to argue that even other lawyers for Trump, who had a motive to conclude Chesebro’s plan was lawful and to join it because its goal was to reelect Trump, had significant concerns regarding Chesebro’s scheme and were unwilling to participate in it. The State can in turn argue that this is evidence that Chesebro’s scheme was unlawful and he knew it.

In sum, there is a large volume of inculpatory evidence pointing to Chesebro joining a conspiracy to unlawfully change the outcome of the election in favor of Trump. The State can contend that Chesebro’s own writings evidence his scheme was knowingly unlawful. Chesebro has already admitted to the electoral certificates being false; now he may also testify as to the elements of the conspiracy surrounding the filing of those documents. Yet to prove Element 2, the state will have to prove not only that the defendants joined a conspiracy (A) to unlawfully change the outcome of the election in favor of Trump but also that the conspiracy (B) contained a common plan or purpose to commit two or more acts of racketeering activity. We turn to that second point now–and explain how the Jenna Ellis, Sidney Powell and Scott Hall pleas may also impact Fulton County’s prosecution of the other co-defendants.

c. Establishing the Common Plan or Purpose

Given the evidence regarding Chesebro discussed above, and the fact that his co-defendants Jenna Ellis, Sidney Powell and Scott Hall have also pleaded guilty,^[204] there is a substantial likelihood the State will be able to prove the conspiracy contained a common plan or purpose to commit two or more acts of racketeering activity.^[205]

The indictment charges that one or more members of the conspiracy committed acts of racketeering activity “including, but not limited to, false statements and writings, impersonating public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, computer invasion of privacy, … acts involving theft, and perjury.”^[206]

Ellis pleaded guilty to one felony count of “AIDING AND ABETTING FALSE STATEMENTS AND WRITINGS”^[207] in violation of O.C.G.A. § 16-10-20. In doing so, she admitted to assisting co-defendants, including Rudy Giuliani, with knowingly and wilfully making false statements to the Georgia Senate regarding supposed voting fraud in the 2020 presidential election.^[208] Such a crime constitutes a predicate act of racketeering activity under Georgia law.^[209] Furthermore, Ellis, who worked closely with Giuliani, agreed “‘to fully cooperate with prosecutors’”^[210] and can provide information and testimony regarding her and her co-defendants’ criminal activity.

In addition, as alleged in the indictment, Powell and Hall played central roles in the conspiracy’s seventh “manner and method[],” conspiring to “unlawfully access secure voting equipment and voter data.”^[211] While they did not plead guilty to those precise offenses, their truthful testimony seems likely to establish the requisite predicate racketeering acts. Defendants often plead guilty to lesser offenses and implicate others in more serious crimes at trial. Even though Chesebro–unlike Powell and Hall–pleaded guilty to a felony, this dynamic may be at play with regard to the Chesebro plea as well.

Powell and Hall could potentially offer significant testimony regarding the conspiracy’s attempts to breach voting machines and steal and disseminate voting data – and thus that it had as a common plan or purpose to commit two or more acts of racketeering activity such as “computer theft, computer trespass, computer invasion of privacy, [and] acts involving theft.”^[212]

Even if Chesebro, Ellis, Powell, or Hall did not have direct contact with the other co-conspirators regarding their particular involvement in the overall conspiracy to unlawfully change the outcome of the election in favor of Trump, it is not necessary for the State to prove that the defendants were participants in specific aspects of the conspiracy, such as the effort to breach voting machines; instead, the State must prove the defendants joined an overarching conspiracy to unlawfully change the outcome of the election in favor of Trump which itself contained a common plan or purpose to commit two or more acts of racketeering activity.

Moreover, given that Chesebro has already pleaded guilty to Count 15, the State can utilize Chesebro to present evidence that the co-conspirators committed the underlying substantive offense contained therein, in order to prove that the defendants joined a conspiracy which itself contained a common plan or purpose to commit two or more acts of racketeering.

IV. Conclusion

In sum, Chesebro apparently played a crucial role in the alleged offenses in the indictment. We illustrated that through analyzing his part in the alleged RICO conspiracy charged in Count 1, encompassing the entirety of the effort to overturn the 2020 election. The State may be able to utilize Chesebro’s obligation to testify truthfully and provide documents, as well as the obligations of Ellis, Powell, and Hall to marshall additional support that the other co-defendants (1) knowingly and willfully (2) joined a conspiracy to unlawfully change the outcome of the election in favor of Trump which itself contained a common plan or purpose to commit two or more acts of racketeering activity; and (3) that one or more of the conspirators committed an overt act to effect the object of the conspiracy. The significant strength of the case in Georgia indicates the potential for similar charges to be brought successfully elsewhere, including other states. We think the facts analyzed in this article illuminate Chesebro’s role in the conspiracy to overturn the election charged in federal court as well.

We would like to thank Sasha Matsuki for their excellent research and project assistance. We would also like to thank Francois Barrilleaux, Jacob Gaba, Michael Nevett, and Allison Rice for their fact-checking and research assistance.

1. Chesebro focuses on six states in his December 6, 9, and 13 memos: Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. By December 14, New Mexico was added to these states and included in Chesebro’s scheme. ↑
2. Amy Gardner and Holly Bailey, “Ex-Trump allies detail efforts to overturn election in Georgia plea videos,” The Washington Post, Nov. 13, 2023, available at: https://www.washingtonpost.com/national-security/2023/11/13/trump-georgia-case-videos-overturn-2020-election/ ↑
3. Tom Joscelyn and Norm Eisen, “Dissecting Kenneth Chesebro’s Proffer Statement: What’s Hidden, What’s Revealed,” Just Security, Nov. 20, 2023, available at: https://www.justsecurity.org/90197/dissecting-kenneth-chesebros-proffer-statement-whats-hidden-whats-revealed/. ↑
4. For example, in a Dec. 23, 2020 email concerning his “Jan 6 scenario” memo, Eastman wrote: “I’m fine with all of Ken’s edits. They had not come through to me on the last round. Here’s the final.” See https://www.govinfo.gov/content/pkg/GPO-J6-DOC-Chapman053475/pdf/GPO-J6-DOC-Chapman053475.pdf. (“December 23 email”) ↑
5. “READ: Trump Lawyer’s memo on six-step plan for Pence to overturn the election,” CNN, September 21, 2021, https://www.cnn.com/2021/09/21/politics/read-eastman-memo/index.html. ↑
6. See Tom Joscelyn and Norm Eisen, “Dissecting Kenneth Chesebro’s Proffer Statement: What’s Hidden, What’s Revealed,” Just Security, Nov. 20, 2023, available at: https://www.justsecurity.org/90197/dissecting-kenneth-chesebros-proffer-statement-whats-hidden-whats-revealed/. ↑
7. Manny Arora, a lawyer for Chesebro, has claimed that his client agreed to plead guilty to Count 15 because the certificates for Trump’s electors in Georgia did not contain language making it clear that their votes were contingent on election litigation. “Technically, because the alternate slate of electors in Georgia didn’t write out, ‘this is only valid if there’s valid legal challenges or valid legal basis for us to submit this alternate slate of electors,’ it could be potentially illegal,” Arora said. Arora also claimed that because language to that effect was added to the Trump electoral certificates in Pennsylvania and another state, there were no charges there. See: The Beat with Ari Melber, “Convicted Trump aide’s lawyer on RICO case & coupe take leak,” MSNBC, Nov. 15, 2023, https://www.msnbc.com/the-beat-with-ari/watch/convicted-trump-aide-s-lawyer-on-rico-case-coup-tape-leak-melber-intv-197973061805. However, as explained more fully below, Chesebro’s own writings show that his plan to submit the fake electoral votes was not contingent on election litigation or a decision by Georgia’s state legislature to flip the state from Biden to Trump prior to the joint session of Congress on Jan. 6, 2021. For instance, in his Dec. 6, 2020 memo, Chesebro advised that lawsuits needed to be merely “pending” in Georgia and other states “on January 6.” ↑
8. See Interview of Pasquale Anthony “Pat” Cipollone, Select Committee to Investigate the January 6th Attack on the U.S. Capitol, July 8, 2022, p. 75, https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPT-CTRL0000928885/pdf/GPO-J6-TRANSCRIPT-CTRL0000928885.pdf. (“Cipollone Interview”) ↑
9. Luke Broadwater and Maggie Haberman, “Trump Lawyer Cited ‘Heated Fight’ Among Justices Over Election Suits,” The New York Times, June 15, 2022, https://www.nytimes.com/2022/06/15/us/trump-emails-eastman-chesebro-jan-6.html. ↑
10. Luke Broadwater and Maggie Haberman, “Trump Lawyer Acknowledged Political Agenda in Election Suit, Emails Show” The New York Times, October 18, 2023, https://www.nytimes.com/2023/10/18/us/politics/kenneth-chesebro-trump-2020-election.html. ↑
11. Andrew Kaczynski, Em Steck and Yahya Abou-Ghazala, “Kenneth Chesebro, alleged architect of fake electors’ plot, followed Alex Jones around Capitol grounds on January 6th,” CNN, August 18, 2023, https://www.cnn.com/2023/08/18/politics/kfile-kenneth-chesebro-followed-alex-jones-capitol-riot-jan-6/index.html. ↑
12. See Tom Joscelyn and Norm Eisen, “Dissecting Kenneth Chesebro’s Proffer Statement: What’s Hidden, What’s Revealed,” Just Security, Nov. 20, 2023, available at: https://www.justsecurity.org/90197/dissecting-kenneth-chesebros-proffer-statement-whats-hidden-whats-revealed/. ↑
13. Memorandum from Kenneth Chesebro to Judge James R. Troupis, “RE The Real Deadline for Settling a State’s Electoral Votes,” November 18, 2020, https://www.justsecurity.org/wp-content/uploads/2022/06/january-6-clearinghouse-kenneth-chesebro-memorandum-to-james-r.-troupis-attorney-for-trump-campaign-wisconsin-November-18-2020.pdf. (“Chesebro, Nov. 18 memo”) ↑
14. Chesebro, Nov. 18 memo, p. 1. ↑
15. Kyle Cheney, “See the 1960 Electoral College certificates that the false Trump electors say justify their gambit,” Politico, Feb. 7, 2022, https://www.politico.com/news/2022/02/07/1960-electoral-college-certificates-false-trump-electors-00006186. ↑
16. “1960 Presidential Election Results,” John F. Kennedy Presidential Library and Museum, https://www.jfklibrary.org/learn/about-jfk/life-of-john-f-kennedy/fast-facts-john-f-kennedy/1960-presidential-election-results. ↑
17. Kyle Cheney, “See the 1960 Electoral College certificates that the false Trump electors say justify their gambit,” Politico, Feb. 7, 2022, https://www.politico.com/news/2022/02/07/1960-electoral-college-certificates-false-trump-electors-00006186. ↑
18. Chesebro, Nov. 18 memo, p. 1. ↑
19. Chesebro, Nov. 18 memo, p. 1. ↑
20. Chesebro, Nov. 18 memo, p. 2. ↑
21. The existence of the memo was first revealed in the Special Counsel’s indictment of Donald Trump. See United States of America v. Donald J. Trump, Case 1:23-cr-00257-TSC, p. 22, https://www.justsecurity.org/wp-content/uploads/2023/08/just-security-united-states-v-donald-trump-2020-election-interference-january-6th-with-names.pdf. The New York Times then obtained a copy of the memo and published it online. See Maggie Haberman, Charlie Savage, and Luke Broadwater, “Previously Secret Memo Laid Out Strategy for Trump to Overturn Biden’s Win,” Aug. 8. 2023, https://www.nytimes.com/2023/08/08/us/politics/trump-indictment-fake-electors-memo.html. See Memorandum from Kenneth Chesebro to James R. Troupis, “RE: Important That All Trump-Pence Electors Vote on December 14,” December 6, 2020, https://int.nyt.com/data/documenttools/chesebro-dec-6-memo/ce55d6abd79c2c71/full.pdf. (“Chesebro, Dec. 6 memo”) ↑
22. Chesebro, Dec. 6 memo, p. 1. ↑
23. Chesebro, Dec. 6 memo, p. 1. ↑
24. Kyle Cheney, “Willis seeks to dismantle false Trump electors’ claims about Hawaii precedent,” Politico, September 7, 2023, https://www.politico.com/news/2023/09/07/willis-trump-hawaii-precedent-00114659. ↑
25. In United States of America v. Donald J. Trump, the Special Counsel has alleged that Chesebro (“Co-Conspirator 5”) and Rudy Giuliani (“Co-Conspirator 1”) used litigation as a “pretext” to justify the false electors’ votes in Arizona and New Mexico. For example, the Special Counsel alleges that Giuliani, acting through Chesebro, “suggested that [an] Arizona lawyer file a petition for certiorari in the Supreme Court as a pretext to claim that litigation was pending in the state, to provide cover for the convening and voting of [Trump’s] fraudulent electors there.”, p. 24, See https://www.justsecurity.org/wp-content/uploads/2023/08/just-security-united-states-v-donald-trump-2020-election-interference-january-6th-with-names.pdf. ↑
26. Chesebro, Dec. 6 memo, p. 1. ↑
27. Chesebro, Dec. 6 memo, p. 2. ↑
28. Chesebro, Dec. 6 memo, p. 2. ↑
29. Chesebro, Dec. 6 memo, p. 2. ↑
30. Chesebro, Dec. 6 memo, p. 2. ↑
31. Joshua Matz, Norman Eisen and Harmann Singh, Guide to Counting Electoral College Votes and The January 6, 2021 Meeting of Congress, States United Democracy Center, January 4, 2021, https://statesuniteddemocracy.org/wp-content/uploads/2021/01/VPP-Guide-to-Counting-Electoral-Votes.pdf. ↑
32. Chesebro, Dec. 6 memo, p. 2. ↑
33. Chesebro, Dec. 6 memo, p. 2. ↑
34. Chesebro, Dec. 6 memo, p. 2. ↑
35. Chesebro, Dec. 6 memo, p. 2-3. ↑
36. Chesebro, Dec. 6 memo, p. 3. ↑
37. Van Jones and Lawrence Lessig, “Why Pennsylvania should take its time counting votes,” CNN.com, November 4, 2020, https://www.cnn.com/2020/11/04/opinions/pennsylvania-take-time-counting-votes-opinion-jones-lessig/index.html. ↑
38. Lauren Egan, “Pennsylvania certifies Biden win, dimming Trump hopes of overturning election results,” NBC News, November 24, 2020, https://www.nbcnews.com/politics/2020-election/pennsylvania-certifies-election-results-biden-n1248804. ↑
39. Kate Brumback, “Georgia again certifies election results showing Biden won,” Associated Press, December 7, 2020, https://apnews.com/article/election-2020-joe-biden-donald-trump-georgia-elections-4eeea3b24f10de886bcdeab6c26b680a. ↑
40. Shortly before Chesebro pleaded guilty and the case was resolved, he submitted an affidavit from an expert to attempt to prove that the legal positions he advanced after the 2020 election had some support and therefore that he lacked the requisite criminal intent. However, the expert affidavit by Professor Larry Lessig actually agrees with Seligman that the President of the Senate does not have any power to take any unilateral action in the electoral count. Lessig concedes that the Chesebro position is not “tenable.” Lessig Decl. 12(4), https://www.justsecurity.org/wp-content/uploads/2023/10/Just-Security-Georgia-Trump-Clearinghouse-%E2%80%94-Kenneth-Chesebro-consolidated-motions-in-limine-Oct.-20-2023.pdf. He further states that “Matthew Seligman has demonstrated that there is no clear original source, contemporaneous with the founding, that supports the suggestion that the President of the Senate has any constitutional authority to determine electoral votes.” Id. at 12(8).Lessig nonetheless contends that “[s]cholars claim this view was more common early in the history of the Republic than today.” Id. 12(4). However, he cites no sources to substantiate any claim that anyone prior to 2000 supported the view that the President of the Senate has any power—he instead cites only law review articles from 2002, 2004, and 2019. Id. at 12(5). He does not claim that any of these articles present any evidence of the meaning of the Constitution at the time of ratification, and there is none in their favor. Lessig states that “[t]hese sources together might well be read to support the view that it was reasonable for electors in contested states to meet and vote on Elector Day.” Id. At 12(7). That is not substantiated. The affidavit cites no sources other than 21st century law review articles that in turn cite no sources. Thus the law review articles and their citations are not a sufficient basis to justify Chesebro’s position. Certainly no originalist scholar, judge, or Justice would adopt the Chesebro position on the basis of these sources. In that vein, Lessig also writes, “I do not believe that even an originalist Supreme Court would find that the Constitution vested in the President of the Senate an unchecked power to determine electoral votes.” Accordingly, suffice it to say, it seems unlikely that the Lessig affidavit can redeem Chesebro’s legal advice. There are other flaws in Lessig’s affidavit, but we do not address them here. ↑
41. Laurence H. Tribe, Anatomy of a Fraud: Kenneth Chesebro’s Misrepresentation of My Scholarship in His Efforts to Overturn the 2020 Presidential Election, Just Security, August 8, 2023, https://www.justsecurity.org/87498/kenneth-chesebros-misrepresentation-of-laurence-tribe-scholarship-in-his-efforts-to-overturn-the-2020-presidential-election. ↑
42. Chesebro, Dec. 6 memo, p. 5. ↑
43. Chesebro, Dec. 6 memo, p. 6. ↑
44. Memorandum from Kenneth Chesebro to James R. Troupis, “Statutory Requirements for December 14 Electoral Votes,” December 9, 2020, https://www.justsecurity.org/wp-content/uploads/2022/06/january-6-clearinghouse-kenneth-chesebro-memorandum-to-james-r.-troupis-attorney-for-trump-campaign-wisconsin-december-9-2020.pdf. (“Chesebro, December 9 memo”) ↑
45. Chesebro, Dec. 9 memo, p. 1. ↑
46. Chesebro, Dec. 9 memo, p. 1. ↑
47. Chesebro, Dec. 9 memo, p. 3. ↑
48. Chesebro, Dec. 9 memo, p. 5. ↑
49. Letter from David J. Shafer to The Honorable Brian P. Kemp, “Re: Notice of Filling Electoral College Vacancy,” December 14, 2020, https://www.archives.gov/files/foia/ga-full.pdf. ↑
50. See O.C.G.A. § 21-2-12. ↑
51. The unsigned form can be found here: https://www.archives.gov/files/foia/ga-full.pdf. ↑
52. Fulton County Indictment, p. 80. ↑
53. Fulton County Indictment, p. 81. ↑
54. See: Email from Kenneth Chesebro to Rudy Giuliani, Subject: PRIVILEGED AND CONFIDENTIAL – Brief Notes on “President of the Senate” strategy, December 13, 2020 (9:48 pm), https://www.govinfo.gov/content/pkg/GPO-J6-DOC-Chapman004708/pdf/GPO-J6-DOC-Chapman004708.pdf. (“Chesebro, Dec. 13 memo”) ↑
55. Chesebro, Dec. 13 memo, p. 1. ↑
56. Chesebro, Dec. 13 memo, p. 1. ↑
57. Chesebro, Dec. 13 memo, p. 1. ↑
58. Chesebro, Dec. 13 memo, p. 2. ↑
59. Chesebro, Dec. 13 memo, p. 2. ↑
60. Chesebro, Dec. 13 memo, p. 2. ↑
61. Chesebro, Dec. 13 memo, p. 2. ↑
62. Chesebro wrote: “Jack Wilenchik has filed an excellent cert. petition to that effect, pointing out that the Arizona courts simply rubber stamped the election results in their rush to meet the Dec. 8 ‘safe harbor’ date which, in this context, is irrelevant, and which is contained in an unconstitutional statute. So we are lucky that Arizona will be the first contested state in the electoral count.” ↑
63. United States of America v. Donald J. Trump, Case 1:23-cr-00257-TSC, p. 23-24 https://www.justsecurity.org/wp-content/uploads/2023/08/just-security-united-states-v-donald-trump-2020-election-interference-january-6th-with-names.pdf. ↑
64. Maggie Haberman and Luke Broadwater, “‘Kind of Wild/Creative’: Emails Shed Light on Trump Fake Electors Plan,” The New York Times, July 26, 2022, https://www.nytimes.com/2022/07/26/us/politics/trump-fake-electors-emails.html. ↑
65. Chesebro, Dec. 13 memo, p. 3. ↑
66. Chesebro, Dec. 13 memo, p. 3. ↑
67. Chesebro, Dec. 13 memo, p. 3. ↑
68. Chesebro, Dec. 13 memo, p. 3. ↑
69. Amy Gardner and Holly Bailey, “Ex-Trump allies detail efforts to overturn election in Georgia plea videos,” The Washington Post, Nov. 13, 2023, available at: https://www.washingtonpost.com/national-security/2023/11/13/trump-georgia-case-videos-overturn-2020-election/. ↑
70. We set forth the reasons for scrutinizing Chesebro’s testimony in a previously-published piece. See Tom Joscelyn and Norm Eisen, “Dissecting Kenneth Chesebro’s Proffer Statement: What’s Hidden, What’s Revealed,” Just Security, Nov. 20, 2023, available at: https://www.justsecurity.org/90197/dissecting-kenneth-chesebros-proffer-statement-whats-hidden-whats-revealed/. ↑
71. United States of America v. Donald J. Trump, p. 24, https://www.justsecurity.org/wp-content/uploads/2023/08/just-security-united-states-v-donald-trump-2020-election-interference-january-6th-with-names.pdf. ↑
72. Email from Kenneth Chesebro to John Eastman and Boris Epshteyn, Subject: Filibuster talking points, January 1, 2021 (8:25 pm), p. 1. https://www.govinfo.gov/content/pkg/GPO-J6-DOC-Chapman061863/pdf/GPO-J6-DOC-Chapman061863.pdf (“Filibuster talking points email”). ↑
73. Filibuster talking points email, p. 1. ↑
74. Filibuster talking points email, p. 1. ↑
75. Filibuster talking points email, p. 2. ↑
76. Email from Kenneth Chesebro to John Eastman, Subject: Fwd: Draft 2, with edits, January 4, 2021 (8:51 pm) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-Chapman004708/pdf/GPO-J6-DOC-Chapman004708.pdf (“January 4 email”). ↑
77. Eastman v. Thompson, Case No. 8:22-cv-00099-DOC-DFM (C.D. Ca, March 28, 2022), at p. 41-42, https://www.courthousenews.com/wp-content/uploads/2022/03/eastman-select-committee-order.pdf#page=33. ↑
78. Email from Kenneth Chesebro to Greg Safsten, Subject: Re: Dec. 14 vote by Arizona Trump-Pence Electors — background material, December 11, 2020 (3:37 am) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000918596/pdf/GPO-J6-DOC-CTRL0000918596.pdf (“Chesebro AZ emails”). ↑
79. Email from Kenneth Chesebro to David Shafer, Subject: URGENT — National Trump-Pence campaign asked me to contact you to coordinate Dec. 14 voting by Georgia electors, December 10, 2020 (11:44 pm) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000042622_00003/pdf/GPO-J6-DOC-CTRL0000042622_00003.pdf (“Chesebro GA emails”). ↑
80. See Chapter 3, footnote 66, for Chesebro’s email(s) involving Michigan’s false electoral documents: https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/html-submitted/ch3.html. ↑
81. Email from Kenneth Chesebro to Mike Roman, Subject: [EXTERNAL]Word documents for New Mexico electors, December 13, 2020 (12:28 am) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000082463_00020/pdf/GPO-J6-DOC-CTRL0000082463_00020.pdf (“Chesebro NM email”). ↑
82. Email from Jeremy Hughes to Michael McDonald, Jim DeGraffenreid, and Jessica Hanson, Subject: Fwd: [EXTERNAL]Re: Presidential Electors Litigation States, December 12, 2020 (11:46 am) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000044083_00087/pdf/GPO-J6-DOC-CTRL0000044083_00087.pdf (“Chesebro NV Ballot Docs email”); Email from Jim DeGraffenreid to Michael McDonald and Jessica Hanson, Subject: URGENT — Trump-Pence campaign asked me to contact you to coordinate Dec. 14 voting by Nevada electors, December 11, 2020 (6:12 am) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000044010_00034/pdf/GPO-J6-DOC-CTRL0000044010_00034.pdf (“Chesebro NV Memos email”); Email from Jim DeGraffenreid to Kenneth Chesebro, Subject: URGENT — Trump-Pence campaign asked me to contact you to coordinate Dec. 14 voting by Nevada electors, December 11, 2020 (6:00 am) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000044010_00031/pdf/GPO-J6-DOC-CTRL0000044010_00031.pdf (“Chesebro NV COA email”). ↑
83. Email from Thomas W King III to Vonne Andring, Lawrence Tabas, and Lawrence Tabas, Subject: Fwd: PA electoral votes — draft certificates & cover memo, December 10, 2020 (11:03 pm) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000061077/pdf/GPO-J6-DOC-CTRL0000061077.pdf (“Chesebro PA Certificates email”). ↑
84. Email from Mark Jefferson to Anna Kelly and Andrew Hitt, Subject: FW: Statement on electors mtg / Draft, February 18, 2021 (12:37 pm) https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000042150_00009/pdf/GPO-J6-DOC-CTRL0000042150_00009.pdf (“WI electors emails”). ↑
85. For example, Chesebro’s email to Republicans in Nevada lists seven attachments: Chesebro NV Ballot Docs email, p. 1-2. ↑
86. Chesebro GA emails, p. 2. ↑
87. Chesebro GA emails, p. 2. ↑
88. Chesebro GA emails, p. 2. ↑
89. Chesebro GA emails, p. 1. ↑
90. Chesebro GA emails, p. 1. ↑
91. State of Georgia v. Chesebro, Motions to Quash Counts 13 and 19, https://www.documentcloud.org/documents/23980085-chesebro-quash-counts-13-and-19. ↑
92. Letter from David J. Shafer to The Honorable Letter from David J. Shafer to The Honorable Brian P. Kemp, p. 5. ↑
93. O.C.G.A. § 21-2-11 referring to O.C.G.A. § 21-2-10. ↑
94. Chesebro GA emails, p. 1. ↑
95. Letter from David J. Shafer to The Honorable Brian P. Kemp. ↑
96. Chesebro GA emails, p. 1. ↑
97. Chesebro AZ emails, p. 1. ↑
98. Chesebro PA Certificates email, p. 1. ↑
99. Chesebro NV Memos email, p. 1. ↑
100. Chesebro NV COA email, p. 1. ↑
101. 2020 Presidential Election Unofficial Certificates submitted to The Office of the Federal Register, The Office of the Federal Register, https://www.archives.gov/foia/2020-presidential-election-unofficial-certificates. ↑
102. NM Republican electors unofficial Certificate of Vote, The Office of the Federal Register, https://www.archives.gov/files/foia/nm-full.pdf. ↑
103. United States of America v. Donald J. Trump, Case 1:23-cr-00257-TSC, para. 61. ↑
104. United States of America v. Donald J. Trump, Case 1:23-cr-00257-TSC, para. 62. ↑
105. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Lawrence Tabas Production), CTRL0000061085 (December 13, 2020, email chain between Thomas King III and James Fitzpatrick re: Pa. Electors), https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000061085/pdf/GPO-J6-DOC-CTRL0000061085.pdf. ↑
106. Amy Gardner, Patrick Marley, Yvonne Wingett Sanchez and Josh Dawsey, ‘Fake’ elector plot raised concerns over legal peril, indictment shows A contingency plan, a crime or a ‘donkey show’? Doubts across seven states and within the Trump campaign, Washington Post August 7, 2023, https://www.washingtonpost.com/national-security/2023/08/07/fake-electors-trump-indictment. ↑
107. https://www.archives.gov/files/foia/pa-cov-full.pdf ↑
108. Amy Gardner, Patrick Marley, Yvonne Wingett Sanchez and Josh Dawsey, ‘Fake’ elector plot raised concerns over legal peril, indictment shows A contingency plan, a crime or a ‘donkey show’? Doubts across seven states and within the Trump campaign, Washington Post August 7, 2023, https://www.washingtonpost.com/national-security/2023/08/07/fake-electors-trump-indictment. ↑
109. Marshall Cohen, Zachary Cohen and Dan Merica, Trump campaign officials, led by Rudy Giuliani, oversaw fake electors plot in 7 states, CNN, January 20, 2022, https://edition.cnn.com/2022/01/20/politics/trump-campaign-officials-rudy-giuliani-fake-electors/index.html. ↑
110. Chesebro NM email, p. 1. ↑
111. Interview of Matthew Morgan, Select Committee to Investigate the January 6th Attack on the U.S. Capitol, Apr. 25, 2022, p. 69-70, https://perma.cc/QZ2E-GJ7S (“Morgan Interview”). ↑
112. Morgan Interview, p. 70. ↑
113. Morgan Interview, p. 71. ↑
114. Morgan Interview, p. 71. ↑
115. Morgan Interview, p. 66. “Q Okay. And when you learned of him in late November, early December, was it in connection with the concept of alternate electors? A Yes. But that wasn’t the initial conception, as I understood it.” ↑
116. Morgan Interview, p. 66-67. ↑
117. Morgan Interview, p. 70. ↑
118. Interview of Justin Clark, Select Committee to Investigate the January 6th Attack on the U.S. Capitol, May 17, 2022, p. 115, https://perma.cc/T9X8-8UX5 (“Clark Interview”). ↑
119. Morgan Interview, p. 72. “I perceived that Mr. Chesebro had further discussed in some form of writing this idea of alternate electors compared with my initial conception of contingent electors…. And my sense of the matter was that this was not an exercise that, given my former relationship with the Office of the Vice President and the Vice President, that I necessarily wanted to continue with.” ↑
120. Morgan Interview, p. 72. ↑
121. Morgan Interview p. 72. ↑
122. Morgan Interview, p. 72. ↑
123. Morgan Interview, p. 72. “And my sense of the matter was that this was not an exercise that, given my former relationship with the Office of the Vice President and the Vice President, that I necessarily wanted to continue with.” ↑
124. Morgan Interview, p. 73. ↑
125. See Chesebro Dec. 6 memo, p. 2. ↑
126. Morgan Interview, p. 75. ↑
127. Morgan Interview, p. 75. ↑
128. Morgan Interview, p. 67. ↑
129. Morgan Interview, p. 69-70. ↑
130. Morgan Interview, p. 74. ↑
131. Morgan Interview, p. 75. ↑
132. Morgan Interview, p. 74. ↑
133. Morgan Interview, p. 74. Morgan elaborated (p. 78) that from his experience “as former counsel to the Vice President, when random or unexpected things show up in the office…it’s a headache. It’s just something you have to deal with. And so having that previous experience, if unexpected things show up, it’s just going to cause, like, a question of what do we do, what do we do with these, and all the rest.” ↑
134. Clark Interview, p. 114. ↑
135. Clark Interview, p. 116. ↑
136. Clark Interview, p. 122. ↑
137. Interview of Josh Findlay, Select Committee to Investigate the January 6th Attack on the U.S. Capitol, May 25, 2022, p. 30, https://perma.cc/TYC7-835K (“Findlay Interview”). ↑
138. Findlay Interview, p. 30. ↑
139. Findlay Interview, p. 30. ↑
140. Findlay Interview, p. 30-31, 39-40, 58. ↑
141. Findlay Interview, p. 39-40. ↑
142. Findlay Interview, p. 39-40, 42. ↑
143. Findlay Interview, p. 40, 42-43. ↑
144. Findlay Interview, p. 41. ↑
145. Findlay Interview, p. 40. ↑
146. Clark Interview, p. 116. ↑
147. Morgan Interview, p. 72 & 74. On the issue of the alternate electors, Morgan said: “I think the only other person I discussed it with was Justin Clark only to say that I wanted to get myself and Josh Findlay removed from the task or responsibility of any additional concerns of the electoral college votes.” (See Morgan, p. 75) Morgan also told the January 6th Committee that by the time the Trump-Pence electors met and cast their votes on December 14th, he and Josh Findlay had “sufficiently handed off any task or responsibility to Ken Chesebro and had kind of put it in the back of our minds and we moved on.” (See Morgan Interview, p. 79). ↑
148. Findlay Interview, p. 43. ↑
149. Findlay Interview, p. 44. ↑
150. Luke Broadwater and Maggie Haberman, “Trump Lawyer Cited ‘Heated Fight’ Among Justices Over Election Suits,” The New York Times, June 15, 2022, https://www.nytimes.com/2022/06/15/us/trump-emails-eastman-chesebro-jan-6.html. ↑
151. Luke Broadwater and Maggie Haberman, “Trump Lawyer Acknowledged Political Agenda in Election Suit, Emails Show” The New York Times, October 18, 2023, https://www.nytimes.com/2023/10/18/us/politics/kenneth-chesebro-trump-2020-election.html. ↑
152. Luke Broadwater and Maggie Haberman, “Trump Lawyer Acknowledged Political Agenda in Election Suit, Emails Show” The New York Times, October 18, 2023, https://www.nytimes.com/2023/10/18/us/politics/kenneth-chesebro-trump-2020-election.html. ↑
153. Andrew Kaczynski, Em Steck and Yahya Abou-Ghazala, “Kenneth Chesebro, alleged architect of fake electors’ plot, followed Alex Jones around Capitol grounds on January 6th,” CNN, August 18, 2023, https://www.cnn.com/2023/08/18/politics/kfile-kenneth-chesebro-followed-alex-jones-capitol-riot-jan-6/index.html. ↑
154. House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, Final Report, Chapter 6.16. ↑
155. Andrew Kaczynski, Em Steck and Yahya Abou-Ghazala, “Kenneth Chesebro, alleged architect of fake electors’ plot, followed Alex Jones around Capitol grounds on January 6th,” CNN, August 18, 2023, https://www.cnn.com/2023/08/18/politics/kfile-kenneth-chesebro-followed-alex-jones-capitol-riot-jan-6/index.html. ↑
156. See Indictment at 76. ↑
157. Georgia Pattern Jury Instructions Section 2.02.10, available at https://georgiasuperiorcourts.org/wp-content/uploads/2021/08/criminal_pattern_jury_instructions_July_2021.pdf. ↑
158. Georgia Pattern Jury Instructions Section 2.02.20, available at https://georgiasuperiorcourts.org/wp-content/uploads/2021/08/criminal_pattern_jury_instructions_July_2021.pdf. ↑
159. O.C.G.A. § 16-10-20.1(b)(1). ↑
160. Montalbano v. Comm’r, 307 F. App’x 322, 323 (11th Cir. 2009) (“A guilty plea is an ‘admission of all the elements of a formal criminal charge.’ McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). ‘[F]or purposes of applying the doctrine of collateral estoppel, there is no difference between a judgment of conviction based upon a guilty plea and a judgment rendered after a trial on the merits. The conclusive effect is the same.” Blohm, 994 F.2d at 1554 (citations omitted).”). ↑
161. O.C.G.A. § 16-10-20.1(c). ↑
162. See Cotman v. State, 342 Ga. App. 569, 585 (2017) (“And under Georgia law, a person may be found guilty of a RICO conspiracy ‘if they knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts.’”); Wylie v. Denton, 323 Ga. App. 161, 164–65 (2013). ↑
163. See O.C.G.A. § 16-14-4(c)(1). ↑
164. See O.C.G.A. § 16-14-4(b). ↑
165. See O.C.G.A. § 16-14-4(c)(1). ↑
166. Wylie v. Denton, 323 Ga. App. 161, 164–65 (2013) (emphasis added); see Cotman, 342 Ga. App. at 585. ↑
167. See Garland v. State, 361 Ga. App. 724, 735 (2021) (“Philpot v. State, 268 Ga. 168, 171 (3), 486 S.E.2d 158 (1997) (holding ‘knowingly’ is an ‘ordinary term[ ] found in common usage and understood by people of common and ordinary experience’); Carroll v. State, 157 Ga. App. 113, 114 (1), 276 S.E.2d 267 (1981) (holding that ‘‘[w]ilfully’ is certainly a term in common usage’ and the trial court did not err by refusing to define it).”). ↑
168. https://www.merriam-webster.com/dictionary/knowing ↑
169. https://www.merriam-webster.com/dictionary/willful ↑
170. Fulton County Indictment, p. 14. ↑
171. Fulton County Indictment, p. 14. ↑
172. Fulton County Indictment, p. 15. See O.C.G.A. § 16-14-3(5)(A)(xvi, xix, xxii, xxiii, xxvii, xxv, xxvii), (B). ↑
173. Fulton County Indictment, p. 1-2. ↑
174. Fulton County Indictment, p. 20; Fulton County Indictment p. 20-71. ↑
175. Fulton County Indictment, p. 17. ↑
176. See Pasha v. State, 273 Ga. App. 788, 790 (2005) (“‘The essence of conspiracy is a common design, and conduct which discloses a common design may give rise to the inference of conspiracy.’”). Note that Chesebro arguably committed, attempted to commit, or solicited another person (such as the fake electors) to commit at least two substantive crimes, and such action by Chesebro could itself constitute racketeering activity under Georgia law. See O.C.G.A. § 16-14-3 (“‘Racketeering activity’ means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime ….”). ↑
177. The State will likely argue at trial that this was to be done via Chesebro’s fake electors scheme. ↑
178. See Pasha v. State, 273 Ga. App. 788, 790 (2005) (“while Pasha argues that he was not adequately charged with the predicate offenses, he misapprehends what is central to conspiracy, namely, that each actor in a conspiracy is responsible for the overt actions undertaken by all the other co-conspirators in furtherance of the conspiracy …. Thus, Pasha’s argument is unavailing, since there is no requirement in a conspiracy case that the State prove that Pasha personally committed the underlying predicate offenses.”). ↑
179. See Pasha v. State, 273 Ga. App. 788, 790 (2005). ↑
180. Fulton County Indictment, p. 16. ↑
181. Fulton County Indictment, p. 16-19. ↑
182. See Pasha, 273 Ga. App. at 790. ↑
183. Fulton County Indictment, p. 16. ↑
184. Fulton County Indictment, p. 17. ↑
185. Fulton County Indictment, p. 13. ↑
186. See Chesebro General Demurrer to Count 1 (RICO) (Sept. 7, 2023) at 1-4; Chesebro General Demurrer to the Indictment Based on First Amendment Protections (Sept. 18, 2023) at 1-2. ↑
187. Nick Robertson, “Chesebro attorney argues client never believed Trump’s ‘big lie’ of election fraud,” The Hill, October 21, 2023, available at https://thehill.com/regulation/court-battles/4268727-chesebro-attorney-client-never-believed-2020-election-fraud/. However, Grubman’s claim is seemingly inconsistent with Chesebro’s own writings. As documented in this analysis, those writings are littered with references to supposed election “abuses” and “irregularities.” Chesebro also wrote in a Jan. 1, 2021, email that “Biden was not legitimately elected” and that his strategy would purportedly show “the illegitimacy of Biden’s election.” Grubman has also claimed: “I think this plea absolutely shows and proves that he was not and never was the architect of any sort of fake elector plan and anything like that.” (See: Richard Elliot, “Kenneth Chesebro, an architect of fake elector scheme, pleads guilty in election interference case,” WSB-TV, October 20, 2023, https://www.wsbtv.com/news/local/atlanta/kenneth-chesebro-an-architect-fake-elector-scheme-pleads-guilty-election-interference-case/BJFVC6BV25AKJKN2RPJ2DTMCZE/.) But Chesebro’s own emails and memos, which are cited throughout this analysis, contradict Grubman’s claim. The evidence shows that Chesebro played a significant role in conceiving of the fake elector plan and then advocating for it as a means to delay the joint session of Congress on January 6, 2021. Indeed, Chesebro’s own emails also show that he authored the fake electoral documents and then emailed them, along with instructions for filing the documents, to the parties responsible for orchestrating the fake electoral plan across seven states. In addition, Grubman has claimed that Trump should “not be worried” because Chesebro “did not implicate anyone else.” Grubman added: “He [Chesebro] is required to testify truthfully if he is called by the state, and Mr. Chesebro is a man of his word.” (See: Robertson, “Chesebro attorney argues client never believed Trump’s ‘big lie’ of election fraud.”) But as detailed in this memo, Chesebro’s truthful testimony could implicate former President Trump in multiple ways. Chesebro’s memos and emails show that the Trump campaign knowingly submitted the fake electoral votes to the relevant federal authorities even though they lacked an official certificate of ascertainment from the states. Moreover, Chesebro’s writings make clear that the fake electors’ votes were filed as part of a scheme to delay or deny the counting of Joe Biden’s certified electoral votes during the joint session of Congress. As part of that scheme, Chesebro and others argued that Vice President Pence (or a Republican Senator), in his role as the President of the Senate, could refuse to count Biden’s certified electoral votes. Trump pressured Vice President Pence to do just that, even though Pence made it clear that he lacked the constitutional authority to do so. Thus, Chesebro’s truthful testimony could show how the fake electors were integral to Trump’s pressure campaign and the conspiracy to deny Biden’s victory. ↑
188. See Matthew Seligman, Analysis of the Lawfulness of Kenneth Chesebro’s Elector Plan Under Federal Election Law, Just Security, (Oct. 9, 2023) at 3, available at https://www.justsecurity.org/wp-content/uploads/2023/10/matthew-seligman-report-analysis-of-lawfulness-of-chesebro-elector-plan-under-federal-election-law-just-security-october-9-2023.pdf. ↑
189. See Matthew Seligman, Analysis of the Lawfulness of Kenneth Chesebro’s Elector Plan Under Federal Election Law, Just Security, (Oct. 9, 2023) at 3, available at https://www.justsecurity.org/wp-content/uploads/2023/10/matthew-seligman-report-analysis-of-lawfulness-of-chesebro-elector-plan-under-federal-election-law-just-security-october-9-2023.pdf. ↑
190. Id. at 4. ↑
191. Chesebro focused on six states in his December 6, 9, and 13 memos: Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. At some point, New Mexico was added to these states and included in Chesebro’s scheme. ↑
192. Chesebro, Dec. 6 memo, p. 2 (“Even if, in the end, the Supreme Court would likely end up ruling that thepower to count the votes (in the sense of resolving controversies concerning them) does not lie with the President of the Senate, but instead lies with Congress (either voting jointly, or in separate Houses), letting matters play out this way would guarantee that public attention would be riveted on the evidence of electoral abuses by the Democrats . . . . I recognize that what I suggest is a bold, controversial strategy.”). ↑
193. As described above, other Trump campaign lawyers have testified that Rudy Giuliani, who served as Trump’s personal attorney, endorsed Chesebro’s plan. And Chesebro’s own emails show that he reported to Giuliani while executing it. Giuliani has also been charged in the indictment with participating in the false elector scheme and RICO conspiracy. ↑
194. In an email exchange with co-defendant John Eastman on December 24, 2020, Chesebro wrote that the “odds of action” by the Supreme Court “before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.” Chesebro’s use of the word “wild” might have been a reference to Donald Trump’s tweet calling for his supporters (“Be there. Will be wild!”) to join a protest in Washington, D.C., on January 6. According to extensive video footage obtained by CNN, Chesebro personally joined the “wild” events of January 6, closely following InfoWars conspiracy theorist Alex Jones around the grounds of the U.S. Capitol. ↑
195. Chesebro coordinated the submission of false slates of electors even though he knew they had no legal validity (as discussed above regarding his December 9 memo referencing the need for ratification by Georgia’s governor). These electors had no certificate of ascertainment, did not reflect the popular vote, and were not contingent upon the result of a court order or state legislature appointment. They were – as indicated above – apparently created to serve as a tool to block the certification of Biden as the winner of the presidential election on January 6. ↑
196. United States of America v. Donald J. Trump, Case 1:23-cr-00257-TSC, para. 61. ↑
197. United States of America v. Donald J. Trump, Case 1:23-cr-00257-TSC, para. 61. ↑
198. Maggie Haberman and Luke Broadwater, “Trump Lawyer Acknowledged Political Agenda in Election Suit, Emails Show,” The New York Times, October 18, 2023, https://www.nytimes.com/2023/10/18/us/politics/kenneth-chesebro-trump-2020-election.html. ↑
199. Maggie Haberman and Luke Broadwater, “Trump Lawyer Acknowledged Political Agenda in Election Suit, Emails Show,” The New York Times, October 18, 2023, https://www.nytimes.com/2023/10/18/us/politics/kenneth-chesebro-trump-2020-election.html. ↑
200. Fulton County Indictment, p. 17. ↑
201. Morgan believed that Trump-Pence electors should convene on a “contingency basis” to “cast and hold” their votes, but, in Morgan’s words, this was “shifted to cast and send” by Chesebro. The Trump lawyers knew that such a change – from “cast and hold” to “cast and send” – veered wildly from the 1960 Hawaii precedent that had been relied upon to justify their electors strategy. Morgan also recoiled at a “reference to the Vice President” that was included in Chesebro’s proposal – presumably a reference to the proposals regarding Pence (or the “President of the Senate”) presiding over Congress on January 6. As Trump lawyer Justin Clark asked, providing evidence of the unlawfulness of Chesebro’s proposal, “why are we having contingent electors vote if there’s no contingency?” Cf. https://www.foxnews.com/media/team-normal-team-crazy-jan-6-hearings; https://www.newsweek.com/who-team-normal-urging-trump-giuliani-against-election-claims-1715380 (describing different groups of lawyers and others working to help the Trump campaign after the 2020 presidential election as “Team Normal” and “Team Crazy”). ↑
202. Cipollone Interview, p. 75. ↑
203. Maggie Haberman and Luke Broadwater, “‘Kind of Wild/Creative’: Emails Shed Light on Trump Fake Electors Plan,” The New York Times, July 26, 2022 https://www.nytimes.com/2022/07/26/us/politics/trump-fake-electors-emails.html. ↑
204. Ellie Quinlan Houghtaling, “Look Who’s Flipped on Donald Trump,” New Republic, October 19, 2023, https://newrepublic.com/post/176342/sidney-powell-guilty-testify-trump-defendants-georgia-election. ↑
205. See Pasha v. State, 273 Ga. App. 788, 790 (2005) (“‘The essence of conspiracy is a common design, and conduct which discloses a common design may give rise to the inference of conspiracy.’”). It should be noted that to help prove the defendants joined a conspiracy that contained a common plan or purpose to commit two or more acts of racketeering activity as charged in Count 1, it appears the State could theoretically (potentially over an objection by defendants to lack of notice) try to prove the conspiracy planned to violate a federal statute, 18 U.S.C. § 1512(c). This is because a violation of 18 U.S.C. § 1512 constitutes an act of racketeering activity under Georgia’s RICO law. This federal statute covers one who “corruptly” “obstructs, influences, or impedes any official proceeding, or attempts to do so,” and the United States has charged Trump in D.C. federal court with violating it. Because there is evidence that Chesebro’s scheme was unlawful and he knew it, the State can argue his effort and intent to disrupt or delay Congress’ official proceeding on January 6 (through the fake elector scheme) was an effort to obstruct an official proceeding done corruptly. While the indictment alleges the fake elector documents “were intended to disrupt and delay the joint session of Congress on January 6, 2021,” it makes no explicit mention of 18 U.S.C. § 1512 and instead focuses on violations of Georgia state criminal statutes. ↑
206. Fulton County Indictment, p. 15. See O.C.G.A. § 16-14-3(5)(A)(xvi, xix, xxii, xxiii, xxvii, xxv, xxvii), (B). ↑
207. See Jenna Lynn Ellis Accusation, October 24, 2023, https://www.justsecurity.org/wp-content/uploads/2023/10/Just-Security-Georgia-Trump-Clearinghouse-%E2%80%94-Jenna-Ellis-criminal-accusation-Oct.-24-2023-1.pdf ↑
208. See Jenna Lynn Ellis Accusation, October 24, 2023, https://www.justsecurity.org/wp-content/uploads/2023/10/Just-Security-Georgia-Trump-Clearinghouse-%E2%80%94-Jenna-Ellis-criminal-accusation-Oct.-24-2023-1.pdf ↑
209. See O.C.G.A. § 16-14-3(5)(A)(xxii). ↑
210. Norman Eisen and Amy Lee Copeland, “Jenna Ellis Could Become a Star Witness Against Trump,” New York Times, October 29, 2023, https://www.nytimes.com/2023/10/29/opinion/jenna-ellis-georgia-trump.html. ↑
211. Fulton County Indictment, p. 18. ↑
212. Fulton County Indictment, p. 15. See O.C.G.A. §§ 16-14-3(5)(A)(xii, xix, xxv) & 16-14-3(5)(B). ↑

IMAGE: Attorney Scott Grubman stands with his client, Kenneth Chesebro, as Chesebro is sworn in during a plea deal hearing in front of Fulton County Superior Judge Scott McAfee at the Fulton County Courthouse October 20, 2023 in Atlanta, Georgia. (Photo by Alyssa Pointer/Getty Images)