Michigan Attorney General Dana Nessel is apparently tired of waiting on the U.S. Department of Justice to act on the ‘false electors’ scheme that occurred in December of 2020. The scheme allegedly consisted of a plan to submit fake certificates stating that former President Trump had won seven battle ground states.
The plan was simple but audacious. As described by Professor Ryan Goodman, co-director of the Reiss Center on Law and Security at New York University School, writing in the publication Just Security: “On Dec. 14, 2020, legitimate members of the Electoral College met across the country to sign certificates declaring which presidential candidate won their state. That day, in several states that Biden had won, Republicans met to sign certificates declaring that they were the ‘duly elected and qualified’ members of the Electoral College and falsely declaring Trump the winner of their state. They sent their documents to the National Archives.”
Michigan was one of those states where Republicans sought to submit an illegal certification. On Dec. 14, 2020, the 16 Michigan Republicans now charged sought to enter the Michigan state Capitol but were turned away by police.
ADVERTISEMENT
Lauren Cox, chair of the Michigan Republican Party in 2020, testified to Congress that she had been made aware of a plan by the 16 fake electors to hide in the Capitol the night before so that they could be inside the Capitol on Dec. 14—the legal date for the certifications to be executed inside the Capitol building. Cox disavowed herself from the plan.
Despite being unsuccessful in their plan to meet inside the state Capitol, the 16 defendants nonetheless claimed on their fake certifications that they had met in the state Capitol when in fact they had met in the basement of the Michigan Party Headquarters in Lansing, Michigan, after being instructed to surrender their cellphones so that no one could record the meeting.
It was at this meeting that the fake certificates were signed, declaring the false, non-official electors to be “…the duly elected and qualified electors for President and Vice President of the United States of America for the State of Michigan.”
Importantly, the Michigan fake certifications were among five—Michigan, Arizona, Georgia, Nevada, and Wisconsin—that used no caveats in their fraudulent assertions, meaning they simply claimed falsely that they were “duly elected and qualified electors.” Fake Republican electors from two other states, New Mexico and Pennsylvania were more cautious, adding the condition that their certificates were only submitted in case they were later recognized as being the duly elected electors.
Ultimately, the scheme failed because Congress and the National Archives ignored the fake certificates and the only ones counted during the joint session were the official ones and because then Vice President Mike Pence declined to introduce the false electoral college certificates.
Attorney General Nessel first referred her investigation to the Justice Department in January of 2022 stating that while there appeared to be state law charges, she deferred to DOJ because she thought them best suited to probe and potentially prosecute. DOJ confirmed then that they were looking into “fraudulent elector certifications.”
But nearly a year later, the only visible sign of action by Attorney General Merrick Garland was his appointment of Jack Smith in November 2022 as special counsel to investigate the Mar-a-Lago documents case as well as investigate “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.”
So, on Jan. 6, 2023—the two-year anniversary of the Jan. 6 attack on the U.S. Capitol—Nessel announced she had reopened her own case, explaining that while she hoped DOJ would be moving forward she believed that “a couple of years later, there should be some accountability.”
Today, six months after re-opening the case, AG Nessel delivered a complaint charging 16 Michigan electors, including the Michigan Republican Party co-chair Meshawn Maddock, and Republican National Committeewoman Kathy Berden who took the Fifth Amendment 80 times in her testimony given to congressional investigators.
Each defendant was charged with Conspiracy to Commit Forgery (14-year felony), Forgery—two counts (14-year felony), Conspiracy to Commit Uttering and Publishing (14-year felony), Uttering and Publishing (14-year felony), Conspiracy to Commit Election Law Forgery (5-year felony) and Election Law Forgery—two counts (5-year felony). All of these charges arose from the effort made to change Michigan’s electoral college votes from Biden to Trump contrary to the will of the Michigan voters.
Nessel’s case rests on what appears to be very strong evidence with much of it having been publicly known since the Jan. 6 Select Committee investigation. Importantly, it is carefully tailored, and deliberately charges only Michigan actors with Michigan election crimes—the sorts of crimes the state has previously charged as noted by the Attorney General in her statement.
There is no over-reach here for the purpose of political grandstanding, nor was Nessel racing to file her charges before the DOJ. To the contrary, Nessel waited some two years for DOJ to act before finally getting the job done herself.
Attorney General Nessel announced her charges on the same day former President Trump announced on social media that he had received a target letter from Special Counsel Jack Smith’s federal investigation into election interference. While Smith has moved with alacrity since being appointed to not one but two historically monumental and challenging investigations, the quick and decisive pace of Attorney General Nessel’s case only highlights how long it took for Merrick Garland and DOJ to even get around to appointing him.
Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno
