A Surprise Indictment in Michigan

Fake Electors Finally Get Charged

This morning, prosecutors in Michigan Attorney General Dana Nessel’s office approached a state magistrate judge in Ingham County, Michigan, with a request that they authorize a criminal complaint and arrest warrants for the slate of fake electors who claimed, in written forms sent to the federal government, that they were the real electors in Michigan for the 2020 election and they supported candidate Trump. All 16 of them.

Of course, none of it was true. They were not duly selected electors. It was, as AG Nessel says in her statement, “a lie.” The certified vote count in Michigan showed that of the 5.5 million Michiganders who voted, approximately 154,000 more checked the box for President Joe Biden than for Donald Trump. The fake electors were part of a plot cooked up by Trump’s inner circle to try and secure a false victory for the loser in the election. Putting those schemes into effect in seven states (Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin) is largely believed to be part of Special Counsel Jack Smith’s January 6 investigation. But the fake electors themselves also committed state crimes that are within the ambit of Michigan state prosecutors.

The defendants are charged in a complaint, not an indictment, with eight counts. They face penalties as long as 14 years. The affidavit in support of the complaint gives us insight into some of the evidence Michigan prosecutors have in hand. The charges include conspiracy to commit forgery, two counts of forgery, conspiracy to commit uttering and publishing, uttering and publishing, conspiracy to commit election law forgery, and two counts of election law forgery. The double counts on the substantive charges were brought because each defendant signed two separate forms that were ultimately transmitted—”uttered and published.”

Charging that conduct is the job of Michigan prosecutors. Just like they would charge anyone else who forged documents, which they do every day. Given these defendants’ past participation in politics and their awareness of the multitude of lawsuits rejecting the notion that any of Trump’s losses resulted from fraud, it will be tough for them to maintain that what they were doing was legitimate.

The questions about this prosecution will begin almost immediately, and they are certain to be wide-ranging. Expect to see some people complain Nessel didn’t go far enough, that she should have indicted the Trump lawyers who came up with the plan and perhaps Trump himself. Others will argue she shouldn’t have jumped in at this stage, that she might have a negative impact on the January 6 case Jack Smith may (or may not) bring. As we learn more about the case and the charges, we’ll be in a better position to assess whether this case is a smart one, but Nessel is, after all, Michigan’s Attorney General. She did the thing she is constitutionally obligated to do. State prosecutors routinely charge people who forge checks and other financial documents, even those who obtain absentee ballots fraudulently. So it’s hard to see she could, in good conscience, not charge this case, where the defendants violated Michigan law in service of a powerful man who refused to accept that he’d lost an election. At the same time, the charges she’s brought are narrow enough that they are unlikely to intersect with anything the federal government would charge. Might she turn up a cooperating witness or two for them? That’s certainly a possibility. We’ll see how it plays out, but these charges look smart, narrowly drawn, and well-warranted.

Nessel referred the matter to federal prosecutors last year, but DOJ seemed to pass on pursuing the case. In January of this year, she commented: “Let’s be fair about what this was: It was an effort to overturn a lawful election…That type of activity can’t go without any consequences. ... There are laws that specifically speak to their actions. I plan to reopen the investigation.” Today she made good on that promise.

It does not appear, although we are only just learning of these events, that any of the defendants have a cooperation deal with prosecutors. That suggests that the Attorney General believes they have a very strong case—they didn’t need to flip any of their targets in advance to enhance their evidence. It’s a bald statement of confidence in the case. There is also no indication at the moment that Michigan prosecutors intend to bring charges against anyone higher up in the food chain. They can use statements, including social media posts, made by any co-conspirator in furtherance of the conspiracy as evidence in the case whether that individual is charged or not. But there is no indication Ms. Nessel plans to bring charges against Donald Trump or others who were involved in putting the scheme in motion. Her job is to charge Michigan actors who violated Michigan law, and it’s clear that she views charging Trump as someone else's responsibility.

The hope is that Jack Smith is ready to follow up. It looks like he is. Today, the former president took to social media to announce that he had received a target letter from the Special Counsel (on a Sunday night of all things—Trump has clearly underestimated the work ethic of federal prosecutors).

That means DOJ has now made it official. In DOJ-speak, a target is someone whom federal prosecutors believe they have sufficient evidence to charge in a criminal case, and whom they intend to charge. The chance that Jack Smith would fail to indict a former president after sending him a target letter are nil. It’s all over but the shouting—the only real question remaining is what the former president will be charged with. Donald Trump says prosecutors gave him until Friday to appear in front of the grand jury to tell his side of the story if he wants to. That suggests prosecutors are ready; they likely have a final version of the indictment in hand, signed off on and ready to be presented to the grand jury as early as next week. Jack Smith is about to take his shot.

We’re in this together,

Joyce