Kenneth John Chesebro #236022
License Status: Active
CONSUMER ALERT This attorney has been charged with a felony. The felony matter is pending in the State of Georgia, Fulton County Superior Court (Case No. 23SC188947). For more information, contact the court in the jurisdiction where the case is pending. The State Bar posts consumer alerts online when lawyers are charged in a criminal court with a felony or felonies. Anyone who believes they have been the victim of attorney misconduct is urged to file a complaint with the State Bar. DISCLAIMER: The filing of criminal charges does not constitute a finding of guilt or professional misconduct. Criminal defendants are presumed to be innocent until proven guilty in a court of law. |
Address: PO Box 9116, San Juan, PR 00908-0116
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Chesebro pleads guilty:
Start at 20" !!!!!
Regarding disclosure of a clients criminal plans or conduct. the American Bar Association's Model Rules of Professional Conduct have been, until now, permissive rather than mandatory . Model RPC 1.6 Confidentiality - adopted widely - has provided
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: ***(2) to prevent the client from committing a crime or fraud... (emph. added)
The provision would not cost Donald Trump any sleep - since no disclosure is compelled. But the plea agreement of his former advisor and co-defendant - lawyer Kenneth Chesebro - to testify truthfully in Trump's upcoming fraud trial in Georgia may cost the ex-President sleep. But in August the ABA amended RPC 1.16 Termination to impose an affirmative duty of inquiry and withdrawal
if “the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.”
In Atlanta the elected Fulton County District Attorney Fani Willis obtained a Grand Jury's indictment of Donald J. Trump and 19 of his lawyers and allies. The broad indictment alleged "a common plan and purpose...to unlawfully change the outcome of the election in favor of Trump, the loser of the 2020 Presidential election in the State of Georgia... and in other states." Among the defendants are Rudolph Giuliani - former Mayor of New York federal prosecutor, Trump Chief of Staff Mark Meadows, and former Supreme Court clerk and Chapman University law Dean John Eastman.
Last week one of the Trump lawyers - Sidney Katherine Powell - pleaded guilty to election interference charges. Today Jenna Ellis pleaded guilty to election interference. Yesterday as trial commenced with jury selection a second lawyer - Kenneth Chesebro - pleaded guilty to Count 15 of the sweeping indictment. A former favorite of the liberal lion of constitutional law Laurence Tribe, Chesebro had distinguished himself as an attorney, In 1993 he was lead plaintiff's counsel in a landmark scientific evidence case Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579).
And Chesebro defended former Vice President Albert Gore in the year 2000 presidential election challenge Bush v. Gore, 531 U.S. 98. There the candidate with fewer votes - George W. Bush - successfully enjoined the Florida recount of votes and took office due to the peculiarities of the federal Constitution's state by state electoral college system.
But having once distinguished himself on the progressive side of the ledger, Chesebro in 2020 sought to undercut the electoral college vote for President Joseph Biden whose certified popular and electoral college vote victory was threatened by the incumbent Trump and allies allegations of electoral fraud. and a scheme to create an "alternate" slate of electors in six closely contested states.
In a December 6, 2020 Memo developing the scheme Chesebro urged that in six closely contested states unsuccessful pro-Trump candidates should claim victory, submit fraudulent certifications of their election, and cast their "votes" for Trump even though their state's electoral officials had declared Trump to be the loser of the November election. It proved to be a grave mistake. On October 19, having lost his motion to bar as privileged under the attorney client and work product doctrines the memorandum he had drafted developing a scheme to have unsuccessful candidates in six states to be Trump electors nonetheless cast votes in favor of the unsuccessful presidential candidate.
The Georgia trial judge, Scott McAfee, citing long-established Georgia precedent, ruled that "attorney-client privilege does not extend to communications concerning proposed infractions of the law in the commission of a crime or the perpetration of a fraud."
With Chesebro having admitted guilt in creating and submitting to a court fraudulent certificates of qualifications as presidential "electors" Judge McAfee ruled that as a condition of acceptance of his plea of guilt Chesebro must testify truthfully if called to testify in any future related proceeding.
Because under Georgia law the state does not have to prove the existence of a crime to overcome the attorney client privilege, [see Fed R. Evid. 502] Judge McAfee explained
To overcome a claim of privilege, proof of the existence of a crime or fraud is not required; rather, “[t]here must be something to give colour to the charge,” and the State need only present prima facie evidence that the charges have “some foundation in fact.”
Faced with the certainty that the memo outlining his multi-state scheme would be admitted into evidence, Chesebro withdrew his not guilty plea and admitted to a felony - filing a false document in the United States District Court. Count 15 of the indictment charged that Chesebro - and others - including Trump
on and between the 6th day of December 2020 and the 14th day of December 2020, unlawfully conspired to knowingly file, enter, and record a document titled "CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA," in a court of the United States, having reason to know that said document contained the materially false statement, States, having reason to know that said document contained the materially false statement, "WE, THE UNDERSIGNED, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia, do hereby certify the following...
Having admitted to a felony - filing false documents in court - Chesebro may make it very difficult for Trump to claim the defense of advice of counsel. Criminal advice is no defense.
It is a measure of the respect that Trump-allied attorney Kenneth Chesebro earned that as he approached trial in Georgia a group of distinguished Republican former government lawyers file a friend of the court brief in the trial court. The court should reject, they argued, the "mistake of law defense" that Chesebro sought to advance - a theory that could be at the center of Trump's defense:
In Mr. Chesebro’s theory, the vice president has the power to recognize himself and his running mate as the winners of the election despite the fact that the electorate and every court that had reviewed he matter decided they lost—or to send the choice of who won to partisan state legislatures aligned with them.
The ABA Rules of Professional Conduct declare in the Preamble
As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Such strictures on legal argument enable a judge to hold as a matter of law - to be decided by judge, not jury - whether Chesebro's legal advice justified Trump's efforts to block the transfer of power on January 6, 2021. That Chesebro decided to admit guilt once that document was headed for the evidence table in a Georgia courtroom suggests that Chesebro's advice will not serve to immunize Trump himself. In the federal indictment - now allowed to proceed by the District of Columbia federal court of appeals - from a finding of obstructing a governmental proceeding with corrupt - legally improper - intent.
- George Conk
10/24/2023
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