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We’ve reached a turning point in the effort to ensure there are consequences for those who deliberately attempt to undermine our democracy: Michigan’s attorney general, Dana Nessel, charged 16 Republican leaders in her state on Tuesday for their role as fake electors working to overturn the results of the 2020 election. The charges, coming on the heels of news that the special counsel Jack Smith has informed Donald Trump that he’s a target of the Department of Justice’s investigation into the Capitol riot, mean we are witnessing a new and necessary phase in this quest for accountability, one in which the federal and state wheels of justice work to hold people accountable not only for the violence on Jan. 6 but also for what got us there: the alleged scheme to interfere with the transfer of power.
The charges in Michigan will surely meet criticism on all sides. Some will say the case is not broad or bold enough, that Mr. Trump and the other accused national ringleaders should have been charged as well. Others will say Ms. Nessel cast too wide a net, pulling in low-level party functionaries who did not know better. We think those criticisms are misconceived. Ms. Nessel got it just right, prosecuting crimes firmly within her jurisdiction while opening the way for federal authorities to net even bigger fish.
Ms. Nessel brought the same eight counts against all 16 defendants. The offenses include conspiracy to commit forgery, since the defendants are accused of signing documents stating they were the qualified electors (they were not), and publishing forged documents by circulating these materials to federal and state authorities. On paper, the penalties for the offenses range from five to 14 years, but sentencing in this case would presumably be lower than that maximum.
Until now, there have been no charges centered on the fake electors plot. For that reason alone, Michigan’s action brings a sense of needed accountability for those who fanned the rioters’ passions leading up to Jan. 6 by spinning a false narrative about a stolen election.
Michigan saw some of the most outrageous fake electoral certificates to emerge during the period leading up to the Capitol riot. Unlike the fake certificates in Pennsylvania and New Mexico, the Michigan documents did not include a disclaimer that they were to be used only in the case of litigation. What’s more, the documents contained more outright false statements than simply declaring that the signers were the lawful electors of the winning candidate.
For example, they state that the electors “convened and organized in the State Capitol,” when, according to the attorney general, they were hidden away in the basement of the state Republican headquarters. (It seems likely that the fake electors included this lie because Michigan law requires presidential electors to meet in the Capitol — a requirement and legal problem that a Trump campaign legal adviser, Kenneth Chesebro, had flagged in his confidential memorandum setting out the scheme.)
In proving these cases, establishing intent will be key. Here, there are several indicators that the defendants may have been aware of the illicit nature of their gathering. According to congressional testimony from the state Republican Party’s chairwoman at the time, Laura Cox, the group originally planned to meet inside the Capitol and hide overnight, so they could vote in the building the following day. Ms. Cox said she told a lawyer working with the Trump campaign and supposedly organizing the fake electors “in no uncertain terms that that was insane and inappropriate” and “a very, very bad idea and potentially illegal.”
As she put it, Ms. Cox was “very uncomfortable” with facilitating a meeting of the fake elector group and said so at the time, in accord with her lawyers’ opinion. She even urged the group to draft a significantly more measured document simply “stating that if perhaps something were to happen in the courts, they were willing and able to serve as electors from Michigan for Donald Trump.” Her advice was not followed.
At the time the fake electors met to allegedly forge their documents, they should have been aware that state officials had certified the election results for Joe Biden; it was national and state news. By that point, there was no prospect of changing that outcome through either litigation or legislative action. On the day prosecutors say the fake electors met, two of the most powerful Republicans in the state acknowledged as much. Mike Shirkey, the majority leader in the State Senate, and Lee Chatfield, the House speaker, issued statements declaring the presidential race over. Mr. Shirkey said that Michigan’s “Democratic slate of electors should be able to proceed with their duty” without the threat of harassment or violence.
The fake electors were told they were not allowed to take their phones into the meeting at the Republican headquarters that day, according to testimony one of them gave congressional investigators. They were instructed to maintain secrecy and not to share any details about what was occurring. That secrecy suggests that they knew what they were doing was wrong.
Michigan’s former secretary of state Terri Lynn Land, who had been designated a Trump elector, declined to participate in the proceedings, saying, according to Ms. Cox’s testimony, she was not comfortable doing so.
With these facts, it would have been unthinkable for the state attorney general to choose not to prosecute the Michigan 16. Ms. Nessel’s office has regularly brought prosecutions, some of them against her fellow Democrats, centered on false documents in connection with elections. The case of the fake electors is far more egregious than most of those other cases: The defendants here were politically engaged individuals who should have been aware of the election results, as well as the flat rejection by the courts and Michigan Legislature of the Trump campaign’s claims of voter fraud.
To be sure, some critics of the case may still think that the Michigan attorney general should have gone after Mr. Trump and his top lieutenants, who helped organize the false electors. But prosecutors have a responsibility first to pursue those individuals within their jurisdiction. By focusing solely on the figures who undertook their acts in Michigan, Ms. Nessel is wisely insulating her case against charges that she overreached.
Of course, broader prosecutions may still be justified. Reporting indicates that the district attorney for Fulton County, Ga., Fani Willis, may be considering a different kind of wide-ranging case, involving state RICO crimes. Unlike the Michigan prosecution, her case may focus on Mr. Trump’s direct efforts to pressure state election officials — efforts that were caught on tape — and Rudy Giuliani’s attempt to provide false statements of election fraud to state officials.
If broad-based indictments ultimately emerge out of Georgia and are supported by the facts and appropriate law, then we would welcome it. That is part of the genius of American democracy: The states, which are responsible for running our elections, are laboratories of both democracy and accountability.
Ms. Nessel’s case also leaves a clear lane for Mr. Smith. She has avoided charging high-level individuals whom Mr. Smith is apparently investigating. If anything, her case provides greater foundation for Mr. Smith to act, and he seems to be following through. If Ms. Nessel can move against these people in Michigan, Mr. Smith can and should do the same against the ringleaders. Together, they can hold both the foot soldiers and their organizers accountable for their actions leading up to the Capitol riot.
Norman Eisen, a senior fellow at the Brookings Institution, was special counsel to the House Judiciary Committee for the first impeachment and trial of Donald Trump. Ryan Goodman, a law professor at New York University, is a co-editor in chief of the Just Security website.
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Posted on 20 Jul 2023 05:13 link