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Prosecutors rebut Nevada ‘fake electors’ efforts to dismiss case, change venue

The filing comes ahead of a March trial for the six Nevadans indicted for their role in the scheme to keep Donald Trump in power in 2021.
Sean Golonka
Sean Golonka
Jacob Solis
Jacob Solis
CourtsElection 2020
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In new court filings, the Nevada Attorney General’s Office is defending evidence used to establish probable cause and the decision to bring charges in Clark County against six so-called “fake electors” who falsely pledged the state’s electoral votes to Donald Trump in 2020.

Those arguments in favor of the two felony forgery charges filed against each of the six defendants included pointing out that the fake electors had, on Dec. 14, 2020, signed a document declaring themselves “the duly elected and qualified Electors for the State of Nevada for President and Vice President” in support of then-President Trump, despite his losing the state’s presidential election to Democrat Joe Biden.

“Petitioners held themselves out as ‘being’ Nevada’s electors. And they made that statement in the present tense at a time when such a statement of fact was false,” state prosecutors wrote in a Thursday filing in Clark County District Court.

The filings came ahead of a March 11 expected trial date and specifically in response to efforts to dismiss the case by the defendants — 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.

Attorneys for those six defendants argued late last month that Attorney General Aaron Ford — a Democrat who sought indictments against the fake electors in December shortly before the expiration of a three-year statute of limitations — had failed to prove that the defendants intended to defraud state and federal officials, in part, because they “did not try to create a certificate that could have been mistaken for a real one.” 

State prosecutors this week dismissed the defendants’ arguments that their actions could not be considered criminally fraudulent because state and federal officials were not deceived by them, writing that it “amounts to an argument that because the defendants were not especially skilled forgers, they can’t properly be convicted of these charges.”

“The fact is, the petitioners intended to pass their documents off as the Certificates of Votes for Nevada. Otherwise, why would they have gone through the trouble of signing numerous copies and sending them to the same government entities that are required to review and process the certificate under state and federal law,” prosecutors wrote.

Also at issue in the case is whether the fake electors knew their documents were false. In grand jury testimony, Trump campaign lawyer Kenneth Chesebro, who was key to advising similar fake elector efforts in other states, said the filings were meant to serve as a legal backstop in the event that courts overturned the results of the election in the contested states. 

In their recent filings, state prosecutors argued that because the Nevada Supreme Court had already tossed out the Trump campaign’s lawsuit seeking to overturn the result of the 2020 election by the time of the fake elector ceremony, the defendants knew their claims of being state electors were false.

But the fake electors’ attorneys wrote that Chesebro did not inform the Nevada Republicans that with no active legal challenge there was no reason to submit an alternate slate of electors, adding that there was still time to appeal the Nevada decision to the U.S. Supreme Court as a final effort to overturn the election result (which the Nevada fake electors ultimately never did).

Dispute over court venue

As part of their efforts to have the case dismissed, the defendants argue that the crime, if any, would have been completed when the envelopes containing the fake elector certificates were mailed out of Minden in Douglas County. 

But the state’s counterargument largely revolves around the conspiracy element of the charges — that even if the fake elector ceremony occurred in Carson City and the documents were mailed from Douglas County, that two key defendants conspired and drafted key documents while they were still in Clark County. To further that point, state prosecutors on Thursday filed two exhibits under seal that contain phone records of McDonald and Law.

Prosecutors argued that the venue for a trial can include any county in which an offense was committed, so even if it was committed in two or more counties, the Clark County venue remained proper. 

Separately, they argued that because the defendants had mailed the fraudulent electoral documents to a federal district court judge in Las Vegas, it was then — at the point at which they were “rendered to the locations at which they were offered and uttered” — that the crime was complete. 

“Consider the classic law school hypothetical: a person stands in California and shoots a gun,” state attorneys wrote. “The bullet flies across the border and strikes dead a victim in Nevada. Defendants would have this Court believe that no Nevada court would be a proper venue for the hypothetical murder trial.”

State attorneys also challenged the use of the “vicinage clause” by the defendants, a part of the Sixth Amendment that limits federal jury trials to the state and district that the crime was committed in. However, neither circuit courts nor the Supreme Court have used the 14th Amendment to apply that limit to state trials, and, they argued, no such vicinage provisions exists in either Nevada law or the state Constitution. 

More than that, they argued, the vicinage question would be moot because the consummation of the crime still occurred in Clark County — “there could be no argument that vicinage required the trial be held anywhere else.” 

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