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Prosecutors: Case against false electors isn’t about elections

steve carmody
Michigan Radio
Several hundred Trumpsupporters gathered at the state capitol in Lansing, as Congress began to debate on the Electoral College results in January 2021.

The arraignment date is approaching for 16 Republicans charged with felonies for allegedly trying to swing Michigan’s electoral college votes from the rightful winner of the 2020 election --- President Joe Biden. Michigan Radio’s Rick Pluta and Colin Jackson and some former prosecutors help break down the case and where things go from here.

COLIN: This goes back to December, when 16 people who were on the official Republican slate of presidential electors presented themselves at the state Capitol to cast their votes for Donald Trump.

RICK: Who had lost Michigan.

C: Exactly. They were turned away. But they also – allegedly --- signed certificates and sent them to the National Archives and to Congress purporting that they were the official electors and these were their official votes for president.

R: The alleged objective being that then-Vice President Pence would accept the alternative slate of Michigan electors as part of a scheme to hand the presidency to Donald Trump.

C: Here’s how Michigan Attorney General Dana Nessel described it:

NESSEL: “This was a lie. They weren’t the duly elected and qualified electors and each of the defendants knew it.”

C: So Rick, what’s the case against these alleged bogus electors?

R: Well, this part is really interesting. There’s actually very little mention in these charges of election fraud. Three counts altogether of election fraud and conspiracy to commit election fraud.

C: Most of the charges are forgery, conspiracy to commit forgery, uttering and publishing. So what gives?

R: The election conspiracy is large, dark and complex. But these charges are not complicated. The prosecutors are saying that this effort to steal an election is a lot like passing bad checks or forging someone’s signature on a contract.

C: Former US Attorney Barbara McQuade, who’s now a University of Michigan law professor, put it this way:

McQuade: “It is an unusual factual situation so it is also an unusual application of these statutes. But I suppose in the absence of some other statutes that fit this crime, it is perhaps the best way to address the harm.”

C: The harm being, again that word “allegedly,” this effort to overturn the will of the majority of Michigan voters.

R: But let’s get back to the nature of these charges. This is Matthew Schneider, who is also a former US attorney and a former Michigan assistant attorney general.

SCHNEIDER: “People are thinking this is all about election law but the charges that are brought are really those common law, statutory basic charges of forgery and uttering and publishing.

R: These are cases prosecutors are used to compiling and arguing in court, right down to the jury instructions.

R: So Colin, what do we know about what we might expect by of defense cases?

C: It’s a mix. Some people say they were duped into signing the documents. Others that they were only signaling they were ready in case the election results were overturned in court.

R: Which could mean they’re betting the prosecution won’t be able to prove intent. Which is why it would be useful to have testimony from someone who was in the room where the alleged conspiracy allegedly occurred. So let’s turn again to Matthew Schneider, who says conspiracy cases tend to play out in a particular way.

SCHNEIDER: “The odds are better than not that at least one of those 16 people will plead guilty and cooperate with the government and I say that because that’s usually what takes place in a conspiracy case.”

C: We should mention Schneider was a Republican appointee as a US attorney.

R: A Trump, appointee, in fact.

C: So Rick, what might prosecutors be worried about?

R: A lot of process motions that could delay the case going to trial and mess up the prosecution’s plans to keep this a simple forgery case that happens to be political. There’s the risk of jury nullification.

C: Which is?

R: When a jury decides, even if the prosecution meets its burden, that they just don’t like the law or how it’s being applied. Jurors basically on their own decide a defendant is in fact, well, guilty as charged, but they don’t like the charges. It’s not a legal defense, per se, but it does happen.

C: And if this is all playing as Donald Trump is also going on trial in New York, that’s going to make it pretty much impossible to keep politics out of it.

R: Agreed. We’ll see what happens at the arraignment, but the political questions are going to have to be managed by prosecutors. They can’t be stopped at the courthouse door.

Rick Pluta and Colin Jackson are reporters in Michigan Public Radio’s state Capitol bureau. The next hearings in the case are scheduled for August in Ingham County.

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