3.1 Laying the Groundwork for the Fake Elector Plan: The Chesebro Memos
3.1 Laying the Groundwork for the Fake Elector Plan: The Chesebro Memos
¶The fake elector plan emerged from a series of legal memoranda written by an outside legal advisor to the Trump Campaign: Kenneth Chesebro. Although John Eastman would have a more prominent role in advising President Trump in the days immediately before January 6th, Chesebro—an attorney based in Boston and New York recruited to assist the Trump Campaign as a volunteer legal advisor—was central to the creation of the plan.8 David Thomas, “Lawyer Group Says Trump Attorney Broke Ethics Rules in Fake Elector Plan,” Reuters, (Oct. 12, 2022), available at https://www.reuters.com/legal/legalindustry/lawyer-group-says-trump-attorney-broke-ethics-rules-fake-elector-plan-2022-10-12/; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), available at https://www.govinfo.gov/committee/house-january6th. Memos by Chesebro on November 18th, December 9th, and December 13th, as discussed below, laid the plan’s foundation.
¶Chesebro’s first memo on November 18th suggested that the Trump Campaign could gain a few extra weeks for litigation to challenge Wisconsin’s election results, so long as a Wisconsin slate of Republican nominees to the electoral college met on December 14th to cast placeholder electoral college votes on a contingent basis.9 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman025125 (November 18, 2020, memo from Kenneth Chesebro titled “The Real Deadline for Settling a State’s Electoral Votes”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman025124 (December 7, 2020, email from Kenneth Chesebro with attachment “2020-11-20 Chesebro memo on real deadline2.pdf”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF037 (November 18, 2020, memo from Kenneth Chesebro titled “The Real Deadline for Settling a State’s Electoral Votes”). See also Alan Feuer, Maggie Haberman, and Luke Broadwater, “Memos Show Roots of Trump’s Focus on Jan. 6 and Alternate Electors,” New York Times, (Feb. 2, 2022), available at https://www.nytimes.com/2022/02/02/us/politics/trump-jan-6-memos.html. This memo acknowledged that “[i]t 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.”10 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman025125 (November 18, 2020, memo from Kenneth Chesebro titled “The Real Deadline for Settling a State’s Electoral Votes”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman025124 (December 7, 2020, email from Kenneth Chesebro with attachment “2020-11-20 Chesebro memo on real deadline2.pdf”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF037 (Nov. 18, 2020, memo from Kenneth Chesebro titled “The Real Deadline for Settling a State’s Electoral Votes”). See also Alan Feuer, Maggie Haberman, and Luke Broadwater, “Memos Show Roots of Trump’s Focus on Jan. 6 and Alternate Electors,” New York Times, (Feb. 2, 2022), available at https://www.nytimes.com/2022/02/02/us/politics/trump-jan-6-memos.html. However, Chesebro argued that if such a slate of alternate electors gathered to cast electoral votes on a contingent basis, this would preserve the Trump Campaign’s options so “a court decision (or, perhaps, a state legislative determination) rendered after December 14 in favor of the Trump-Pence slate of electors should be timely.”11 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman025125, (November 18, 2020, memo from Kenneth Chesebro titled “The Real Deadline for Settling a State’s Electoral Votes”) (underlining in original); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman025124, (December 7, 2020, email from Kenneth Chesebro with attachment “2020-11-20 Chesebro memo on real deadline2.pdf”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), CTRL0000082463_00009, (November 18, 2020, memo from Kenneth Chesebro titled “The Real Deadline for Settling a State’s Electoral Votes”); Alan Feuer, Maggie Haberman, and Luke Broadwater, “Memos Show Roots of Trump’s Focus on Jan. 6 and Alternate Electors,” New York Times, (Feb. 2, 2022), available at https://www.nytimes.com/2022/02/02/us/politics/trump-jan-6-memos.html.
¶On December 9th, Chesebro penned a second memo, which suggested another purpose for fake electoral college votes on January 6th. It stated that unauthorized Trump electors in these States could be retroactively recognized “by a court, the state legislature, or Congress.”12 Emphasis added. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF044, (December 9, 2020, memo from Kenneth Chesebro titled “Statutory Requirements for December 14 Electoral Votes”); Alan Feuer, Maggie Haberman, and Luke Broadwater, “Memos Show Roots of Trump’s Focus on Jan. 6 and Alternate Electors,” New York Times, (Feb. 2, 2022), available at https://www.nytimes.com/2022/02/02/us/politics/trump-jan-6-memos.html. Under this theory, there would be no need for a court to decide that the election had been decided in error; instead, Congress itself could choose among dueling slates of purported electoral votes—and thereby decide the Presidential election—even though Article II of the Constitution grants that power to the electoral college via the States.13 U.S. Const., art. II, §. 1, cl. 2: (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”).
344¶Chesebro’s contemporaneous communications make clear that the goal was having Congress act on the fake electoral votes. He emailed an organizer of the fake electors in Nevada that “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 . . .”14 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (James DeGraffenreid Production), DEGRAFFENREID 000778, (December 11, 2020, email from Jim DeGraffenreid to Kenneth Chesebro with subject “URGENT—Trump-Pence campaign asked me to contact you to coordinate Dec. 14 voting by Nevada electors”). And a legal advisor to the Arizona GOP reportedly described being told by Chesebro around this time that their supposed electors “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.”15 Maggie Haberman and Luke Broadwater, “‘Kind of Wild/Creative’: Emails Shed Light on Trump Fake Electors Plan,” New York Times, (July 26, 2022), available at https://www.nytimes.com/2022/07/26/us/politics/trump-fake-electors-emails.html (emphasis in original). Although this alleged email described by the New York Times was not produced to the Select Committee, it matches certain information in a privilege log provided to the Select Committee by its reported sender. This includes the same reported sender (Jack Wilenchik), direct recipient (Boris Epshteyn), seven cc’ed recipients in the same order (Christina Bobb, Lee Miller, Dennis Wilenchik, Aaron Green, Josh Offenhartz, Christine Ferreira, and Victoria Stevens), title (“RE: [EXTERNAL]FW: petition for Cert and Motion for Expedited Consideration”), and date (12/8/2020), with only a negligible one-minute discrepancy in the time sent (4:27 p.m. versus 4:26 p.m.). See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (Jack Wilenchik Production), CTRL0000922311, line 9 (Sept. 7, 2022, Jack Wilenchik Production 09_07_2022—PrivLog UPDATED).
¶Many of the States contested by the Trump team had laws that specified requirements for electors to validly cast and transmit their votes—and the December 9, 2020, memo recognized that some of these criteria would be difficult, if not impossible, for the fake electors to fulfill. (As described later, most were not fulfilled.) For example, Nevada State law required that the secretary of state preside when Presidential electors meet,16 “Nevada Revised Statutes,” Title 24—Elections, Chapter 298—Presidential Electors and Elections, Nevada State Legislature, available at https://www.leg.state.nv.us/nrs/nrs-298.html#NRS298Sec065. and Nevada Secretary of State Barbara Cegavske, a Republican, had already signed a certificate ascertaining the Biden/Harris electors as the authorized, winning slate.17 “Nevada Certificate of Ascertainment 2020,” National Archives and Records Administration, (Dec. 2, 2020, also later updated Dec. 10, 2020), available at https://www.archives.gov/files/electoral-college/2020/ascertainment-nevada.pdf. Several States also had rules requiring electors to cast their votes in the State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot were unavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognized that these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF044 (December 9, 2020, memo from Kenneth Chesebro titled “Statutory Requirements for December 14 Electoral Votes”). Where it wouldn’t be possible to comply with State law, as in Nevada, Chesebro advised the so-called electors to proceed anyway, writing: "[T]hese technical aspects of state law are unlikely to matter much in the end." Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (James DeGraffenreid Production), DEGRAFFENREID 000778, (December 11, 2020, email from Jim DeGraffenreid to Kenneth Chesebro with subject “URGENT—Trump-Pence campaign asked me to contact you to coordinate Dec. 14 voting by Nevada electors”).
¶On December 13th, the fake elector scheme became even clearer in an email sent by Chesebro to Giuliani. His message was entitled “Brief notes on ‘President of the Senate’ strategy.” It addressed how the fake electors meeting the next day, December 14th, could be exploited during the joint session of Congress on January 6th by the President of the Senate—a role that the Constitution grants to the Vice President of the United States.19 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708 (January 4, 2021, email from Kenneth Chesebro to John Eastman titled “Fwd: Draft 2, with edits”, which includes in the chain a Dec. 13, 2020, email from Kenneth Chesebro to Rudy Giuliani titled “PRIVILEGED AND CONFIDENTIAL—Brief Notes on “President of the Senate” strategy”). Chesebro argued that, on January 6th, the President of the Senate could:
. . . 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 . . .20 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708 (January 4, 2021, email from Kenneth Chesebro to John Eastman titled “Fwd: Draft 2, with edits”, which includes in the chain a Dec. 13, 2020, email from Kenneth Chesebro to Rudy Giuliani titled “PRIVILEGED AND CONFIDENTIAL—Brief Notes on “President of the Senate” strategy”).
¶Chesebro’s email suggested that the President of the Senate (which, under the Constitution, is the Vice President) could toss out former Vice President Biden’s actual electoral votes for any State where the Trump Campaign organized fake electors, simply “because there are two slates of votes.”21 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708 (January 4, 2021, email from Kenneth Chesebro to John Eastman titled “Fwd: Draft 2, with edits”, which includes in the chain a Dec. 13, 2020, email from Kenneth Chesebro to Rudy Giuliani titled “PRIVILEGED AND CONFIDENTIAL—Brief Notes on “President of the Senate” strategy”). Of course, there were never two slates of electoral votes, so this premise itself was fundamentally wrong. But he was arguing that even if votes by fake electors were never retroactively ratified under State law, their mere submission to Congress would be enough to allow the presiding officer to disregard valid votes for former Vice President Biden.22 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708 (January 4, 2021, email from Kenneth Chesebro to John Eastman titled “Fwd: Draft 2, with edits”, which includes in the chain a Dec. 13, 2020, email from Kenneth Chesebro to Rudy Giuliani titled “PRIVILEGED AND CONFIDENTIAL—Brief Notes on “President of the Senate” strategy”). In his email, Mr. Chesebro argues that the President of the Senate should open “two envelopes” from the contested States including Arizona, “announce[] that he cannot and will not . . . count any electoral votes from [the contested State] because there are two slates of votes,” and refuse to count them unless the election is “rerun,” the courts engage in “adequate judicial review,” or the State’s legislature “appoint[s] electors.” From this language, it is clear that Mr. Chesebro contemplated the fake votes being used in Congress without a court or State government adopting, ratifying, or otherwise selecting them as the proper electoral college votes from a contested State. To be fair, Chesebro concludes this email by telling Giuliani that “[m]any more points would need to be analyzed in making a complete argument that the President of the Senate possesses the sole power to count electoral votes, and anything to the contrary in the Electoral Count Act is unconstitutional.” Despite that caution, the very next sentence advocates for a vigorous assertion of that power: “But at minimum this seems a defensible interpretation of the Twelfth Amendment, and one that ought to be asserted, vigorously, by whoever has the role of President of the Senate.” Chesebro suggested this might result in a second term for President Trump, or, at minimum, it would force a debate about purported election fraud—neither of which was a lawful, legitimate reason to organize and convene fake electors.23 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708 (January 4, 2021, email from Kenneth Chesebro to John Eastman titled “Fwd: Draft 2, with edits”, which includes in the chain a Dec. 13, 2020, email from Kenneth Chesebro to Rudy Giuliani titled “PRIVILEGED AND CONFIDENTIAL—Brief Notes on “President of the Senate” strategy”).
345¶As discussed below and in Chapter 5, John Eastman worked with Chesebro as January 6th approached and wrote two additional memos that built upon, and extended, the plan to use the fake electoral votes during the joint session.24 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053475, Chapman053476, (Dec. 23, 2020 email titled “PRIVILEGED AND CONFIDENTIAL—Dec 23 memo on Jan 6 scenario.docx” from John Eastman to Boris Epshteyn and Kenneth Chesebro, with attached memo titled “January 6 scenario”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source), CTRL0000923050 (Jan. 3, 2021, John Eastman 6-page memo); John C. Eastman, “Privileged and Confidential–Jan 6 Scenario,” (Jan. 3, 2021), available at https://www.scribd.com/document/528776994/Privileged-and-Confidential-Jan-3-Memo-on-Jan-6-Scenario and embedded at John C. Eastman, “Trying to Prevent Illegal Conduct from Deciding an Election is Not Endorsing a ‘Coup’,” American Greatness (Sep. 30, 2021), available at https://amgreatness.com/2021/09/30/trying-to-prevent-illegal-conduct-from-deciding-an-election-is-not-endorsing-a-coup/.