[The newly revealed document written by little-known lawyer
Kenneth Cheseboro shows us how the fake elector scheme evolved. ]
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THE SECRET MEMO AT TRUMP CONSPIRACY GROUND ZERO  
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Norman Eisen, Joshua Kolb, and Fred Wertheimer
August 12, 2023
MSNBC
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_ The newly revealed document written by little-known lawyer Kenneth
Cheseboro shows us how the fake elector scheme evolved. _

Donald Trump’s lawyer Ken Cheseboro, Talking Points Memo/Getty

 

Former President Donald Trump’s attempt to overturn the 2020
election 
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brought a lot of national attention to a previously unknown
lawyer: Kenneth Chesebro, christened
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in special counsel Jack Smith’s federal indictment
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Aug. 1. Amid the swarm of bold-faced public figures who have dominated
the public narrative around Jan. 6 — not only Trump but Mark
Meadows, Rudy Giuliani and John Eastman — Chesebro has stayed mostly
under the radar. But this week we have seen, for the first time, the
text of a shocking Dec. 6, 2020,
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first published by The New York Times — that is at the heart of the
alleged crimes. It gives new prominence to Chesebro and exposes
critical new details of the allegedly criminal scheme
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overturn the 2020 election. 

It gives new prominence to Chesebro and exposes critical new details
of the allegedly criminal scheme to overturn the 2020 election.

The public had already seen other memos 
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by Chesebro and additional co-conspirators describing the audacious
plot to create fake electoral slates 
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use them to press Vice President Mike Pence to reject the genuine
state electors on Jan. 6. And we did know a little bit about this
heretofore unseen piece of evidence. Smith’s indictment says this
memo was “a sharp departure” from Chesebro’s earlier Nov. 18,
2020, memorandum
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a plan to organize alternate electors in Wisconsin, where election
litigation was pending. But the indictment’s description was
relatively general.      

Now that we have the actual document, we can see precisely how the
scheme evolved: from an earlier, perhaps legitimate effort to preserve
Wisconsin electors for Trump based on genuine litigation into a
nationwide sham.

In the Dec. 6
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Chesebro argued that the phony Trump electors in six states should
meet and certify their votes so that they could later be presented at
the Jan. 6 congressional proceeding
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certify the winner. This would provide the opportunity for the
enactment of the nonsensical legal theory Chesebro promulgated: that
Pence, single-handedly, held the power to count the electoral votes
and could therefore simply disregard legitimate Biden electors,
handing victory to Trump.  

Chesebro himself indicated in the memo that he knew this legal theory
was dubious, using euphemisms like “bold” and “controversial”
to describe it. He acknowledged that the Supreme Court would
“likely” reject it. Nevertheless, the memo bluntly declares a goal
that was allegedly criminal: to “prevent Biden from amassing 270
electoral votes” even though Biden had legitimately won more than
that number. 

In assessing the legality of what Chesebro and his associates were
proposing, we should think of these fake electoral certificates the
same way we would counterfeit money. What Chesebro, Trump, Eastman and
the rest of the alleged conspirators wanted Pence to do seems
equivalent to passing phony money. Or worse, walking into Congress and
declaring that our true currency had been nullified and the
counterfeit money was the official legal tender of the United States.

It’s clear Chesebro’s true intention was not to present a neutral
or even novel legal theory. This was fundamentally a political
strategy, cloaked in the garb of the law.     

It’s clear Chesebro’s true intention was not to present a neutral
or even novel legal theory.

This crucial distinction also helped tip Chesebro over from legal
adviser to co-conspirator. His Dec. 6 memo contains contradictions,
distortions and misrepresentations. And the cleverness (by half) of
his plan — in contrast to some of the inept lawyering that
surrounded the Trump campaign (remember the “Kraken”
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— made it all the more insidious. 

The memo also included proposed messaging that contradicted
Chesebro’s own expressed opinions. While acknowledging that he was
presenting a “bold, controversial strategy” that was “likely”
to be overturned by the Supreme Court, Chesebro also suggested that
“there should be messaging that presents this as a routine
measure.” 

Moreover, it misrepresent
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the scholarship 
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Laurence Tribe, the noted Harvard Law School constitutional scholar
and Chesebro’s former teacher. In one instance, Chesebro quoted a
fragment from a sentence Tribe had written in the context of Bush v.
Gore in 2000; Chesebro’s
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that “the only real deadline for a State’s electoral votes to be
finalized is ‘before Congress starts to count the votes on January
6,’” the internal quotes coming from a law review article Tribe
wrote in 2001.

But this citation is misleading at best. Tribe was discussing Florida
state election law specifically, and was not suggesting, as he wrote
in a recent essay
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Chesebro’s use of his work, “a general proposition about the power
of States to do what they wish regardless of the Electoral Count Act
and independent of the deadlines set by Congress.” 

As federal Judge David Carter
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the Jan. 6 scheme was “a coup in search of a legal theory.”
Chesebro was determined to provide that theory, seemingly irrespective
of its legality or integrity. And according to Smith’s indictment,
that work was an essential part of the larger plot. 

Ultimately, Chesebro’s memo highlights a theme of the Trump
indictment: the corrupting of the legal profession in the service of
one man, a coup attempt, and illicit political power. Lawyers like
Chesebro promoted arguments that they seeem to have known
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not legally sound, and did so in hopes of creating conditions on the
ground to achieve their favored political ends outside proper legal
channels.

Chesebro’s memo highlights a theme of the Trump indictment: the
corrupting of the legal profession in the service of one man, a coup
attempt, and illicit political power.

In the newly revealed memo, Chesebro argued for his plan
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of whether the Supreme Court ultimately ruled against it because the
legality of assembling fake electors or the constitutionality of the
Electoral Count Act was not principally the point. Donald Trump being
sworn in as president on Jan. 20, 2021, was the point. Period. 

Prominent legal ethics experts, including one of us, have called for
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disbarment. The state bar of California has already put together
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case to disbar John Eastman that is currently being litigated. And a
Washington, D.C., bar discipline committee concluded
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Rudy Giuliani’s law license should be revoked.

Fundamentally, Jack Smith brought his indictment to uphold the rule of
law. His case serves to counteract the allegedly lawless wreckage
created, in part, by lawyers like Chesebro — who are officers of the
court and swore an oath to protect the rule of law. The newly revealed
memo exposes just how deep the corruption was.

_Ambassador Norman Eisen
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former President Barack Obama’s ethics czar and impeachment counsel
to the House Judiciary Committee in 2019-20._

_Joshua Kolb is a former law clerk on the Senate Judiciary Committee._

_Fred Wertheimer is president of Democracy 21, a nonpartisan,
nonprofit organization that works to strengthen U.S. democracy and
empower citizens in the political process._

* Donald Trump
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* conspiracy indictment
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* Kenneth Cheseboro
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