Prosecutors in Arizona and Nevada reportedly plan on meeting with Kenneth Chesebro, an attorney who helped devise former President Donald Trump’s fake electors scheme. Chesebro has already pleaded guilty to a felony in Fulton County, Georgia, where he, Trump, and 17 others were charged with seeking to overturn the 2020 presidential election.
It is easy to see why other states’ prosecutors may now be seeking his testimony: Chesebro and his scheme were a central part of Trump’s attempt to subvert our democracy (Trump’s federal indictment and the January 6th select committee report make that plain). Chesebro proposed ways for the Trump campaign to prevent Joe Biden’s certified electors from seven states, including Nevada and Arizona, from being counted during the Jan. 6, 2021 congressional certification proceeding. He also assisted the efforts to try to get Vice President Mike Pence to violate his constitutional duties and act in defiance of the Electoral Count Act. If Chesebro’s plans had worked, millions of voters would have been disenfranchised.
Previously, we examined at length Chesebro’s writings, which show how the false electors’ votes were intended to obstruct the joint session of Congress on Jan. 6, 2021. We have also analyzed what Chesebro reportedly told Fulton County prosecutors, raising questions about the extent of his cooperation under his plea deal. In this third installment, we suggest ten basic questions that prosecutors should ask Chesebro, both to gauge the extent of his willingness to cooperate and to illuminate how his scheme was intended to work.
1. Why did you argue that the Trump campaign could “prevent Biden from amassing 270 electoral votes” and “prevent the Biden camp from concluding the vote on Jan. 6.”?
Chesebro’s documents establish that his ultimate goal was to interfere with the Jan. 6 certification of the presidential election. It is important for him to corroborate that. In the federal indictment of Trump, the Special Counsel describes Chesebro as an attorney who “assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” Chesebro’s own memos and emails make clear the purpose of his false electors scheme was to delay or deny Biden’s legitimate victory – that is, to obstruct the Jan. 6, 2021 congressional certification proceeding.
For example, in a Dec. 6, 2020 memo, 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, and send in the certificates containing their votes” to the relevant officials. Chesebro advised that, as of Jan. 6, there needed to be a “pending” lawsuit “in each of the six States” that “might plausibly, if allowed to proceed to completion, lead to either Trump winning the State or at least Biden being denied the State.”
Chesebro emphasized that “it is important that the alternate slates of electors meet on December 14 if we are going 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.” Chesebro argued not only that the Trump campaign could keep Biden below 270 electoral votes, but also that it was “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).
In a Dec. 13, 2020 memo, Chesebro offered a “way to create delay and pressure for further action” based on “conflicting [electoral] votes” being submitted to Congress. He conceded that his proposal “would seem messy and unpalatable to many” as it created uncertainty over who would become president well after Jan. 6, 2021, but he argued that the Trump campaign could proceed anyway. Then, in a Jan. 1, 2021 email, Chesebro offered a strategy to prevent Biden from “claim[ing] victory” and “to find a way to prevent the Biden camp from concluding the vote on Jan. 6.”
As Chesebro’s writings make clear, the fake electors scheme was intended to prevent Congress from certifying Biden’s lawful victory on Jan. 6, 2021.
2. Why did you recommend that Nevada’s false electors meet, cast, and submit their votes, even though you knew it would be “extremely problematic” legally without the Secretary of State’s oversight of the meeting?
In a Dec. 9 memo, Chesebro admitted the fake electors scheme was unlawful in Nevada: “Nevada is an extremely problematic State, because it requires the meeting of electors to be overseen by the Secretary of State, who is only supposed to permit electoral votes for the winner of the popular vote in Nevada. Nev. Rev. Stats. §§ 298.065, 298.075.”Chesebro nonetheless claimed that Nevada’s “provisions…make no sense when applied to this situation, in which we are trying to have an alternate slate vote, in hopes that its legitimacy will be validated before January 6.” However, as noted above, Chesebro’s Dec. 6 memo did not call for the fake electors’ votes to be “validated” via election litigation by Jan. 6, merely that election lawsuits were “pending” in each state. He nonetheless suggested in his Dec. 9 memo that “the Nevada electors could simply meet and cast their votes, without the involvement of the Secretary of State.”
He should have to answer, in particular, for his efforts to have the fake electors submit their certifications absent the Secretary of State’s role and absent validation by litigation or otherwise. This was, among other things, a course of conduct that had no resemblance to the Hawaii 1960 case that he has attempted to use rhetorically to defend these actions.
3. Did you or anyone else try to help trick the false electors in Nevada, Arizona, or other states into participating?
As alleged in the Special Counsel’s indictment, “[s]ome fraudulent electors were tricked into participating based on the understanding that their votes would be used only if [Trump] succeeded in outcome-determinative lawsuits within their state, which [Trump] never did.” That is, some of the fake electors thought their votes would be used only if somehow Trump won their state through litigation.
But that wasn’t Chesebro’s plan for the fake electors’ votes. As he set forth in his Dec. 6 memo, Chesebro merely called for election lawsuits to be “pending” on Jan. 6. Yet, Chesebro apparently did not email his Dec. 6 memo to those responsible for convening the fake electors in Nevada, Arizona or other states.
Chesebro’s omission is potentially significant. As alleged in the Special Counsel’s indictment, the Dec. 6 memo “marked a sharp departure from [Chesebro’s Nov. 18 memo], 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.” In addition, the Special Counsel alleges, Giuliani and Chesebro used election litigation in Arizona as a “pretext” to justify the false electors’ votes – even though their votes were not really contingent on the outcome of any lawsuit.
In addition, on Dec. 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 [Trump] succeeded in litigation,” according to the federal indictment. 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 [Trump’s] litigation was successful,” the federal indictment states. Investigators should ascertain whether Chesebro took any steps to amplify or reinforce Giuliani’s false assurances.
4. Did you agree with President Trump that Vice President Pence had the power to “reject” electoral votes on Jan. 6–and do you still?
As part of his false electors scheme, Chesebro argued that the Vice President, or a Republican senator acting as President of the Senate, should assume powers that are clearly not granted by the Constitution. Chesebro himself described his proposal as “hugely controversial.”
In a Dec. 13, 2020 email, Chesebro proposed that Pence recuse himself from the Jan. 6 certification proceedings. At that point, Chesebro advised that a senior Republican senator, acting as the “President of the Senate,” could then refuse to count Biden’s electoral votes and disregard court decisions because he “can make his own judgment” that state courts “violated due process.” Alternatively, in a Jan. 1, 2021 email, Chesebro proposed that Vice President Pence refuse to count the certified electoral votes from several states during the joint session of Congress. This was part of the plan to delay or deny Biden’s victory and, he claimed, would “pressure the Supreme Court and state legislatures to act.”
Trump and another lawyer, John Eastman, pushed versions of this plan as well. Ultimately, Trump directly pressured Pence to overturn the election’s results – a demand that the Vice President consistently refused. But Chesebro’s role in this part of the Jan. 6 conspiracy is likely underappreciated and warrants additional scrutiny from investigators.
Chesebro should be asked whether he thinks the Supreme Court would ever hold that the President of the Senate could disregard court decisions in an election because he “can make his own judgment” that state courts “violated due process” (as Chesebro claimed in the Dec. 13 memo), and whether he found any Trump campaign lawyer or any lawyer at all who agreed with that view. It was an outlandish idea with no basis in law.
5. After you pleaded guilty to a felony in Georgia, one of your attorneys claimed that you “never believed” in Trump’s “Big Lie.” But if that is true, then why did you seek to prevent Biden’s lawful, certified electors from being counted on Jan. 6?
There is clear tension between the lawyer’s claim and Chesebro’s contemporaneous writings. In his Jan. 1, 2021 email, for instance, 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” (emphasis added). That claim is the essence of the “Big Lie.” Chesebro also argued that “election abuses” and “election irregularities” needed to be exposed on Jan. 6.
Chesebro’s contemporaneous writings clearly do not square with his lawyer’s claim. If Chesebro “never believed” in the “Big Lie,” then his memos and emails advocating plans to delay or disrupt the joint session of Congress were based on a dishonest premise. If Chesebro did believe in the “Big Lie,” then his lawyer’s recent claim is false.
6. In legal filings in Georgia, your lawyers have suggested that the false electors’ votes were consistent with the 1887 Electoral Count Act (ECA) because they were “contingent” and therefore lawful. But in your own writings you consistently argued that the ECA should be violated and was “unconstitutional.” You also argued that “alternate slates of electors” should be submitted without any contingencies. Do you still contend that the ECA (prior to the revised ECA of 2022) was “unconstitutional,” or do you now claim that you were following the ECA’s framework?
In the Fulton County case, Chesebro’s lawyers submitted a summary motion in which they argued that the ECA “makes explicit that Congress is to receive both Presidential Elector ballots and contingent Presidential Elector ballots.” They argued that the ECA’s “plain text recognizes the legitimate role of contingent electors in disputed presidential elections.”
There are at least two problems with their argument. First, as explained above, the fake electors in Chesebro’s scheme were not “contingent electors.” They were, according to Chesebro himself, “alternate slates of electors” that he recommended be submitted to the relevant officials without any contingencies to be met.
Second, his lawyers’ filings on Chesebro’s behalf are inconsistent with Chesebro’s own writings. Chesebro repeatedly advocated proposals in which officials could violate the ECA because he claimed it was “unconstitutional.” Thus, it seems that Chesebro and his lawyers want to have it both ways – defending his scheme as lawful under the ECA, while Chesebro himself argued that the ECA should not be adhered to.
For example, Chesebro argued that anything in the ECA constraining the Vice President’s power to “open and count the votes” is “unconstitutional.” He described the ECA as an “unconstitutional statute,” declared the ECA’s “limits on debate” during the joint session of Congress as “unconstitutional” and argued that the Vice President and Republicans senators could orchestrate a “filibuster” or find other ways “around” the ECA.
Chesebro’s false electors scheme was not consistent with the ECA, as his lawyers have claimed. Instead, it was specifically designed to violate the ECA.
7. What exactly did you discuss with Trump during your Dec. 16, 2020 Oval Office meeting, or at any other time whether directly or indirectly (e.g., through intermediaries)?
According to the Washington Post, Chesebro revealed for the first time to Georgia prosecutors that he personally met with Trump and others in the White House on Dec. 16, 2020. We previously assessed Chesebro’s reported description of this meeting. There are good reasons for investigators in Nevada, Arizona and elsewhere to follow up.
Most importantly, Chesebro claims he discussed his Nov. 18, 2020 memo with Trump, but apparently he supposedly did not mention any of his other writings. That memo was the first in a series of memoranda and emails he wrote – and it is the least inculpatory document in this series and only dealt with Wisconsin. His fake elector proposal evolved dramatically in the weeks that followed to include an allegedly criminal plan to delay the joint session of Congress. Indeed, the Nov. 18 memo was overtaken by events, and Chesebro had since shifted to a different strategy (of non-contingent, alternate electors). It is difficult to imagine he briefed candidate Trump only on the outmoded plan.
That plan included his incriminating Dec. 6 and Dec. 13 memos (described above), which were written within 10 days of his Oval Office meeting with Trump. It is hard to believe Chesebro did not mention their contents and instead discussed only his earliest, least inculpatory memo.
8. Why didn’t you add contingency language to the false Electoral College documents for Nevada or Arizona?
According to the Special Counsel’s indictment, fake electors in Pennsylvania allegedly refused to participate in Chesebro’s plan by signing a document stating they were the duly elected and qualified electors, because they knew that was false. Instead, Thomas W. King III, the general counsel for the Republican Party in Pennsylvania, added contingency language indicating that their votes should be counted only if the Trump campaign prevailed in election litigation. The Pennsylvania fake electors then signed that document. Furthermore, Chesebro added language caveating the false electoral certificate in New Mexico as contingent “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.” However, neither Chesebro nor anyone else ever added such contingent language to the fake Nevada or Arizona certificates.
9. You wrote in private emails that the “political argument” others could make on Jan. 6 is what mattered. Were you acting as a lawyer or a political advisor in those discussions?
In late December of 2020, Chesebro arguably revealed he was not simply engaged in suggesting legal strategies but rather focused on political schemes. The New York Times reported that in an email exchange on Dec. 24, 2020, Chesebro conceded that the ongoing election litigation was likely to fail, but argued that the “relevant analysis” “is political.” If the Supreme Court failed to act on their claims, Chesebro wrote, it would give people the “impression that the courts lacked the courage to fairly and timely consider these complaints,” thereby “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.”
Accordingly, Chesebro’s efforts were allegedly part of a political attempt to criminally overturn the 2020 election.
10. Your contemporaneous emails reveal that Rudy Giuliani was supervising your efforts. When did you discuss the false electors scheme with Giuliani and how would you characterize his role?
According to the Washington Post, Chesebro downplayed Giuliani’s role in the false electors scheme during questioning by Georgia prosecutors. But Chesebro’s contemporaneous emails from December 2020 show that he consistently referred to Giuliani as the one overseeing the effort and his in particular. For example, in his email to Jim DeGraffenreid of Nevada, Chesebro wrote: “Mayor Giuliani . . . 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.” DeGraffenreid responded, “Nevada is on board.” Chesebro replied that Giuliani “was glad to hear of your agreement with this strategy.”
It could be valuable for investigators to learn more about what communications Chesebro had with Giuliani and who else was aware of them.
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These are just some of the questions that prosecutors and investigators can ask Chesebro. There are, as we detailed in our previous pieces, many other questions raised by his writings. If the Washington Post’s account of Chesebro’s proffer statement in Fulton County, Georgia is accurate, then there are also significant questions concerning his candor in that matter. Investigators can seek to clarify his testimony on multiple key issues.