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Nevada 'fake electors' accuse state of withholding exculpatory evidence

The accusations hinge on emails that Trump campaign attorney Kenneth Chesebro sent regarding whether Nevada fit his legal theory.
Gabby Birenbaum
Gabby Birenbaum

Attorneys representing several of the Nevada Republican fake electors are accusing the state of withholding crucial evidence from the grand jury that indicted them over their role in falsely pledging the state’s six electoral votes to Donald Trump in the 2020 election.

The six defendants — Nevada GOP Chairman Michael McDonald, Republican National Committeeman Jim DeGraffenreid, Clark County GOP Chairman Jesse Law, state party Vice Chair Jim Hindle, Shawn Meehan and Eileen Rice — were each indicted on two counts by a grand jury in December over their role in the national plot coordinated by Trump’s campaign to cast electoral votes for the president in states where he did not win. That included Nevada, where the six met in Carson City to submit a fake slate of votes for Trump that they then submitted to federal and state election authorities. 

Attorney General Aaron Ford’s case to the grand jury was built on testimony from Trump campaign lawyer Kenneth Chesebro, who argued that the legal theory behind the fake elector plot relied on there being active litigation challenging the results of the 2020 election at the time of the fraudulent ceremony. In the state’s case, proving the fake electors’ intent to defraud could hinge on whether the six defendants pursued the ceremony and misrepresented themselves as electors despite the Trump campaign’s doubts that doing so would hold up legally.

In Nevada, the state Supreme Court had rejected the Trump campaign’s legal efforts to overturn the results of the election and subsequent appeal by Dec. 8, nearly a week before the fake electors convened.

But a new motion from the defense filed Monday accuses the state of failing to present evidence that could exonerate the fake electors — both to the grand jury and then in discovery to the defense. The lawyers for three of the defendants — McDonald, Law and Rice — say in the filing that the state possessed thousands of pages of emails and text messages from Chesebro that they only turned over to the defense after multiple requests on March 15.

The defense is now arguing that because that evidence was not available when they filed their initial writ of habeas corpus — a challenge to the legality of the charges — they are asking the court for permission to file a reply to the state’s response

The trial is currently scheduled for January 2025, but the defendants’ motion — if the judge permits them to reply — adds a new element to lawyers’ attempts to disprove the state’s case.

A spokesperson for Ford’s office said the state does not comment on pending litigation outside of a courtroom, but that prosecutors are confident in the merits of their case.

The evidence cited in the motion appears to both reinforce and rebut the defense’s claim that certain Chesebro communications would weaken the case against the fake electors.

The filing points to two emails Chesebro wrote to members of the Trump campaign in December 2020 suggesting additional legal challenges to Nevada’s electoral results. In the first, dated Dec. 8, 2020, Chesebro wrote to Trump campaign attorney James Troupis that “I think having the electors send in alternate slates of votes on Dec. 14 can pay huge dividends even if there is no litigation pending on Jan. 6.”

Chesebro’s email stated that his logic is acceptable because the Senate could vote to certify the fake slate rather than the real slate certified by each state’s governor. That’s the same legally dubious theory that suggested then-Vice President Mike Pence had the authority to throw out the authentic slates and bring up the fake ones for a vote. 

But the defense argues that because Chesebro raised such a legal theory as plausible in an email — though none of the Nevadans are on the thread — the state’s case that the Nevada fake electors’ actions were knowingly moot by Chesebro’s standard of needing active pending litigation is undermined.

Secondly, the defense points to a Dec. 11 email from Chesebro to various Trump campaign officials addressing the concern that without pending legal challenges, the rationale behind holding a fake elector ceremony does not hold up. In the email, Chesebro writes, “It seems plausible for Nevada to seek cert. in the Supreme Court.”

Chesebro is referring to a writ of certiorari, a process by which people can petition the Supreme Court to hear a case that has already been decided at a lower court. Such a motion was ultimately filed by the Trump campaign for cases in Pennsylvania and Wisconsin, but not Nevada.

Chesebro argued that the campaign could appeal to the Supreme Court on the grounds that the  state had rushed to judgment in election challenges to meet the “safe harbor” deadline of Dec. 8, when governors must certify election results. However, he acknowledged that such a challenge would be “incredibly uphill” in Nevada and that the theory rests on the court finding that the entire Electoral Count Act, which sets the safe harbor date, is unconstitutional.

Nevada’s case to the grand jury involved Chesebro testifying that his legal theory for fake elector ceremonies rested on the existence of active legislation challenging the electoral results in each state, of which Nevada had none. However, attorneys for the fake electors believe that Chesebro’s writings in these instances prove that the Nevadans’ fake elector ceremony was permissible, because Chesebro still believed that a petition to the Supreme Court or a challenge in the Senate was possible.

In the same email threads, however, Chesebro also casts doubt on Nevada specifically — before ultimately saying that the prospect of a U.S. Supreme Court appeal would put a Nevada fake elector ceremony on firmer ground. On Dec. 10, Chesebro wrote that Nevada presented a different challenge than Arizona, where there were active plans to seek U.S. Supreme Court review. 

“If there’s no realistic prospect of relief there — including no plausible cert. petition to the U.S. Supreme Court — I would suggest dropping Nevada,” Chesebro wrote. “Because combining the lack of litigation with state procedures for conducting an Electoral College vote, it looks pretty hopeless.”

He also noted that even if there were no fake elector ceremony in Nevada, members of Congress could still vote against certifying then-candidate Joe Biden’s win in Nevada — denying Biden the state’s six electoral votes rather than potentially adding them to Trump’s column.

Later on the night of Dec. 10, Chesebro told the Trump campaign that DeGraffenreid had told him that the Nevadans were on board, but that given the concerns, Chesebro could “see a strategic decision being made either way on Nevada, or even Arizona.” But such a decision, Chesebro cautioned, was above his pay grade.


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