A previously unseen legal memorandum by a lawyer from former president Donald Trump’s failed 2020 re-election campaign laid out how the ex-president’s efforts to interfere with certification of that year’s electoral college results were meant to buy time and delay the quadrennial joint session at which Mr Trump’s defeat to Joe Biden would be made final and official.
The memo, which was first reported on by The New York Times, was referenced in the four-count indictment returned against former president Donald Trump by a Washington DC grand jury last month. It was authored by Kenneth Chesebro, an attorney affiliated with the Trump campaign who is described — but not named — in the indictment as an un-indicted co-conspirator in Mr Trump’s alleged conspiracy to obstruct certification of the 2020 election.
Dated 6 December 2020 — a full month before the day a riotous mob of Mr Trump’s supporters sought to stop Congress from certifying his defeat — it advises the campaign to have the electors who would’ve cast votes for Mr Trump and then-vice president Mike Pence had they won in six contested states meet in state capitals and draw up forged Electoral College certificates to be sent to Washington as if they were legitimate.
The fake electoral certificates were meant to be used by Mr Pence as he presided over the certification. Mr Trump and his allies had sought to pressure the then-vice president into unilaterally deciding to count the fake electoral certificates as legitimate while rejecting the legitimate electoral certificates and therefore declaring himself and Mr Trump as the winners of the 2020 election.
This plan, which figures prominently in the charges brought against Mr Trump by a Washington DC grand jury late last month, was judged to have no legal justification by a slew of lawyers employed by the US government, including Mr Trump’s own White House counsel and other legal advisers.
The Wisconsin-based attorney, who the indictment describes as “co-conspirator 5,” was first engaged by the Trump campaign to assist in challenging the then-president’s loss to Mr Biden in the Badger State.
According to evidence compiled by the House January 6 select committee, he sent two other memoranda — one on 18 November 2020 and another on 9 December 2020 — to Trump allies in swing states who were labouring on the fake elector scheme.
But the 6 December memorandum laid out a far more controversial plan, under which Mr Pence would “the position that it is his constitutional power and duty, alone, as president of the Senate, to both open and count the votes”.
Mr Chesebro’s memorandum stated that he was not “necessarily advising” such a course, but instead made the point that the fake electors were necessary to “create a scenario under which Biden can be prevented from reaching 270 electoral votes, even if Trump has not managed by then to obtain court decisions (or state legislative resolutions) invalidating enough results to push Biden below 270”.
“I believe that what can be achieved on Jan. 6 is not simply to keep Biden below 270 electoral votes,” he said. “It seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count unless and until Biden can obtain a favorable decision from the Supreme Court upholding the Electoral Count Act as constitutional, or otherwise recognizing the power of Congress (and not the president of the Senate) to count the votes”.
He conceded that the “bold, controversial strategy” might not be tenable to execute, but he also advised that Mr Trump’s campaign employ a messaging strategy to portray the illicit plan as “a routine measure”.
But in the indictment against Mr Trump, prosecutors say his plan actually constituted part of a criminal scheme to create “a fake controversy that would derail the proper certification of Biden as president-elect”.
