Special Counsel Jack Smith has concluded that he can prove that several private lawyers acted as co-conspirators in former President Donald Trump’s criminal effort to overturn the legitimate results of the 2020 presidential election. That conclusion, which is backed up by an enormous body of evidence, has significant implications for American democracy as well as for what it says about members of the legal profession. In the wake of this historic indictment, it is important for those of us with more information to come forward.
I am personally familiar with an aspect of the indictment’s documentary evidence that may shed light on the actions of one of the attorneys – Kenneth Chesebro — who is identified as Co-Conspirator 5 by the special counsel.
In a civil suit, Judge David Carter called the 2020 election interference scheme “a coup in search of a legal theory.” What I have to offer here can shed light on the anatomy of that fraud. It shows how the attorneys concocted arguments that gave the scheme an air of legitimacy but one that could not withstand public scrutiny. I know this well because a key memorandum drafted by Chesebro — which might otherwise appear relatively innocuous even in how it is discussed in the indictment — laid the foundation for the scheme grounded, in part, on misrepresenting my work. I know this especially well because of my prior communications with Chesebro.
I. Background
According to the indictment, the Trump attorneys participated in a “corrupt plan to subvert the federal government function by stopping Biden electors’ votes from being counted and certified” (para 54). They allegedly helped devise and implement central parts of the conspiracy. Those schemes include an effort to use false slates of electors to obstruct the congressional certification of the election and an effort to get Vice President Mike Pence to use his ceremonial role to interfere with the certification.
The special counsel alleges that Chesebro “assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding” (para 8). It is important to note that the indictment alleges that he and other attorneys’ criminal conduct involved knowingly misrepresenting facts (not just misrepresenting the law). For instance, the indictment states that Rudy Giuliani and Chesebro made factual claims they knew to be false to GOP electors in Pennsylvania to induce those electors to swear to certifications that the two attorneys knew to be fraudulent (paras 61-62).
II. The November 18 Memorandum
The indictment focuses on a series of confidential memoranda that Chesebro wrote in devising the plan to orchestrate false slates of electors. “The plan capitalized on ideas presented in memoranda drafted by Co-Conspirator 5,” the special counsel states (para 54). The first of these documents – Chesebro’s November 18 Memorandum — came five days after “the Defendant’s Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona – meaning, based on the assessment the Defendant’s Campaign advisors had given him just a week earlier, the Defendant had lost the election” (para 13).
That Memorandum, entitled “The Real Deadline for Settling a State’s Electoral Votes,” relied on a gross misrepresentation of my scholarship. What follows are my recollections of Chesebro’s communications with me and my impressions of his misuse of what I had written. Readers can draw their own conclusions.
As the title of the November 18 Memorandum indicates, Chesebro focuses on what he considers the “real deadline” under the federal scheme for presidential elections (see the Memorandum’s “Summary”). In the body of the Memorandum, he quotes me completely out of context. I was discussing the specifics of Florida state law — not what federal law (or, for that matter, any other state’s law) requires or permits.
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