Nevada’s six “fake electors” are asking a district court judge to toss out felony forgery charges brought against them by state prosecutors earlier this year over their efforts to subvert the 2020 election.

In petitions filed with Clark County District Court on Monday, attorneys for the fake electors filed a petition for a writ of habeas corpus — a motion challenging the constitutionality of the charges in order to ease the defendants’ pretrial restraints or vacate the need for a trial — in Clark County District Court on Monday, and a motion to dismiss the case based on the use of Clark County as the venue. 

The attorneys added in an accompanying memorandum to the court that describes the charges as “an effort to harshly punish defendants by trying to fit a square peg in a round hole.” 

A Clark County grand jury in December indicted Nevada GOP Chair Michael McDonald, Republican National Committeeman Jim DeGraffenreid, Clark County GOP Chair Jesse Law, state party Vice Chair Jim Hindle, Shawn Meehan and Eileen Rice on two felony charges based on their conduct three years prior as “fake electors.” After the 2020 election, in which President Joe Biden lawfully won Nevada, the six held their own symbolic ceremony in Carson City purporting to certify the state’s election results for then-President Donald Trump, despite lacking the authority to do so, and filed fake certificates with the state and the National Archives pledging the state’s six electoral votes to Trump.

Their actions were part of a Trump campaign-coordinated strategy in states Biden won to present fake slates in other states, including Wisconsin, Michigan and Pennsylvania.

Attorney General Aaron Ford, a Democrat, sought and won indictments against the fake electors on felony charges of offering a false instrument for filing and uttering a forged instrument based on the fake documents the Nevadans submitted — charges that collectively carry punishments of two to nine years imprisonment. The defendants were charged days before a three-year statute of limitations expired.

Defendants in the case pleaded not guilty at an initial court date in December. Ahead of the scheduled March 11 start to the jury trial, a district court judge has set a hearing for Feb. 14 to consider the new petitions to dismiss the case.

Arguments

In their memoranda, the fake electors’ lawyers — including Richard Wright and a partner at his firm, Monti Jordana Levy, as well as Maggie McLetchie, who represents Law — argue that Ford did not prove that the fake electors intended to defraud state and federal officials and that the documents themselves are not forged, as the second charge presumes, but rather genuine documents containing “false information.”

The attorneys argue that the evidence Ford presented to the grand jury told an incomplete story. In testimony before the grand jury, Trump campaign lawyer Kenneth Chesebro — who advised the Nevada and other state slates of fake electors and provided sample documents to them — said the purpose of the fake documents was to have backups ready in case courts overturned the results of the election in the contested states. 

Through their questions, investigators noted that the legal challenges in Nevada had been tossed out by Dec. 8, 2020, while the fake elector ceremony was held on Dec. 14 — making the need for the documents moot under Chesebro’s theory.

However, the attorneys argue that while Chesebro discussed the efforts to dispute the election in Nevada as part of a broader strategy with other members of the Trump team, whom he named in a proffer session with investigators, the Nevada fake electors were never included in the conversations.

“While Mr. Chesebro discussed that if there was no challenge in Nevada there was no reason to vote with the Trump campaign, he never informed the Nevada electors of this information,” the attorneys wrote.

They also say that the time for legal challenges had not yet expired, given that while the rejected appeal ended the possibility for any legal avenues in Nevada, the campaign had 90 days to file a writ of certiorari — or a request for review — to the U.S. Supreme Court as a final effort to overturn the election result (which the Nevada fake electors ultimately never did).

The attorneys say state prosecutors misled the grand jury by failing to provide that information. In Wisconsin, Chesebro and others on the Trump campaign filed an ultimately unsuccessful writ of certiorari on Dec. 29.

The electors’ attorneys further argue that the investigators did not show the full raw footage of the fake elector ceremony footage to the grand jury, and that in a part left out, Law states the purpose of the fake documents is to “pull this right back into the courts.”

Chesebro also noted in his testimony that while fake electors in Pennsylvania were nervous about calling themselves “duly elected and qualified,” and asked Chesebro to draft more conditional language for them, the Nevada fake electors never did — a move that likely saved them from prosecution. Chesebro preemptively prepared that language for New Mexico’s fake electors as well without being asked, but when he asked the Trump campaign if he should suggest the conditional language for the Nevadans, Trump campaign aide Mike Roman said “fuck those guys” and told Chesebro not to, according to the attorneys’ filing. 

The attorneys also argue the prosecutors fail to establish probable cause that the defendants are guilty of violating state forgery laws because they “did not try to create a certificate that could have been mistaken for a real one.” That includes not including the state seal or the signature of the secretary of state. 

The fraudulent electors, however, had filed the certificate to state and national election officials with the intention it could be approved and counted by the Electoral College in the event the courts overturned Trump’s loss in Nevada. 

The fake electors’ attorneys also directly criticize Ford’s contradicting statements on the issue, introducing the memorandum by pointing to his comments last May stating that state law “did not directly address the conduct in question.” In December, Ford defended his comments, adding, “What I did not say was that there were no other generally applicable state statutes to address what these defendants did.”

A change of venue

While the fake signing ceremony in December 2020 took place in Carson City, Ford pursued charges against the defendants hundreds of miles away in Clark County.

The electors’ attorneys point to state law that defines the power of grand juries to inquire into offenses triable in district court that have been “committed within the territorial jurisdiction of the district court for which it is impaneled.” In a motion filed on behalf of Rice, they argue that she could only have a fair trial in Carson City, where the signing ceremony took place, or Douglas County, where she lives and where the fake elector documents were originally mailed from, according to testimony from U.S. Postal Service inspector Warren Heister.

Wright, who is representing McDonald, said all six defendants will be joining that motion.

Grand jury transcripts highlight how prosecutors directed questions to establish the relevance of Las Vegas to the case. That included showing the fake elector documents were returned to the Nevada GOP’s headquarters in Las Vegas, though they were originally mailed from Minden.

Ford has not publicly said why he chose to file the case in Las Vegas instead of Carson City. His office did not respond to a request for comment Tuesday morning.