Category Archives: chicanery

“Exclusive: Key figure in fake electors plot concealed damning posts on secret Twitter account from investigators”

CNN:

Kenneth Chesebro, the right-wing attorney who helped devise the Trump campaign’s fake electors plot in 2020, concealed a secret Twitter account from Michigan prosecutors, hiding dozens of damning posts that undercut his statements to investigators about his role in the election subversion scheme, a CNN KFile investigation has found.

Chesebro denied using Twitter, now known as the platform X, or having any “alternate IDs” when directly asked by Michigan investigators last year during his cooperation session, according to recordings of his interview obtained by CNN.

But CNN linked Chesebro to the secret account based on numerous matching details — including biographical information regarding his work, family, travels and investments. The anonymous account, BadgerPundit, also showed a keen interest in the Electoral College process and lined up with Chesebro’s private activities at the time.

The Twitter posts reveal that even before the 2020 election, and then just two days after polls closed, Chesebro promoted a far more aggressive election subversion strategy than he later let on in his Michigan interview….

Chesebro claimed to investigators he saw the alternate slates of Republican electors only as a contingency plan to have ready in case the Trump campaign won any of its more than 60 lawsuits challenging the election results — which it didn’t. He also told Michigan investigators that in his conversations with the Trump campaign, he made clear that “state legislatures have no power to override the courts.”

But just days after the 2020 election, BadgerPundit tweeted that the court battles didn’t matter and that Republican-controlled legislatures should send in their own GOP electors, predicting even then that then-Vice President Mike Pence could use them to throw the election to Trump….

“You don’t get the big picture. Trump doesn’t have to get courts to declare him the winner of the vote. He just needs to convince Republican legislatures that the election was systematically rigged, but it’s impossible to run it again, so they should appoint electors instead,” wrote BadgerPundit on November 7, 2020, the day multiple media outlets, including CNN, called the election for Joe Biden.

Yet in his interview with Michigan investigators, Chesebro said the very opposite, claiming that the entire electors plan was contingent on the courts.

“I saw no scenario where Pence could count any vote for any state because there hadn’t been a court or a legislature in any state backing any of the alternate electors,” Chesebro said….


After the 2020 election, BadgerPundit tweeted more than 50 times that Pence had the power to count the electors benefitting Trump, according to a CNN KFile analysis of the account.

Chesebro also told investigators that he felt “misled” by the Trump campaign for concealing the entirety of their plan from him. He claimed that it wasn’t until last year that he fully realized the campaign had always intended to deploy the fake electors regardless of the outcome of its election lawsuits.

That idea was first raised in a September 2020 article in The Atlantic, which quoted a “Trump legal adviser” who described using alternate electors to overturn a Trump loss.

When asked by Michigan investigators if he had knowledge of The Atlantic article at the time it was published, Chesebro said he did not. Yet BadgerPundit tweeted about it the same day it was published and defended the plot.

Chesebro’s attorneys acknowledged in an interview with CNN that “there’s clearly a conflict” between some of his tweets and what he told Michigan prosecutors, and that some of the elector theories he embraced online were “inconsistent” with his subsequent legal advice to the Trump campaign.

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Wisconsin: “Assembly leaders concede Michael Gableman violated records laws during fruitless 2020 election review”

Milwaukee Journal Sentinel:’

 Assembly officials have admitted former Wisconsin Supreme Court Justice Michael Gableman violated public records laws while taxpayers paid him hundreds of thousands of dollars to probe the 2020 election — an investigation that did not turn up any evidence to question President Joe Biden’s victory.

The acknowledgment by Assembly leaders was part of an agreement to settle a lawsuit filed against the Assembly’s Office of Special Counsel when Gableman occupied the office. It was filed by liberal watchdog American Oversight after Gableman testified he routinely deleted records during a hearing in another lawsuit over Gableman’s record keeping.

A

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“Court battle reveals effort to undermine No Labels presidential bid”

WaPo:

Political operatives opposed to No Labels’ potential 2024 presidential ticket took over the NoLabels.com domain last year and purchased Google search ads aimed at spreading the misleading claim that the group supported former president Donald Trump and other right-wing causes, according to testimony in a federal civil trial here.

Arizona political operative Charles Siler, who led the effort, described in a recorded deposition how he created a website that echoed the design, color scheme and language of No Labels’ actual website, NoLabels.org. But the mirror website was filled with pictures of politicians not embraced by No Labels, including Trump and House Speaker Mike Johnson (R-La.).

Siler said in his deposition that he was motivated by a desire to rally a “community of motivated, disaffected and unaffiliated voters” that has been attracted to the No Labels group. But a planning deck he created for the project, which was produced Thursday in the U.S. District Court of Delaware, suggested a different motive.

“This is a real opportunity for us to mirror the NL.ORG language while also framing the entire NL project as a right-wing shadow effort by crafting language that looks like it’s coming from NL,” said the deck.

The court case comes amid ongoing debate over the goals of the No Labels effort, which aims to potentially place a yet-to-be-identified bipartisan presidential ticket on as many ballots as possible. Many Democrats and moderate Republicans fiercely oppose the idea, fearing that such a ticket could hand the White House back to Trump.

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“At worst [Douglas Mackey’s tweets containing false information about how to vote] were calculated to cause voters to send futile text messages and then stay home on election day.”

Pretty remarkable statement in Douglas Mackey’s reply brief in his criminal appeal before the Second Circuit. To me, the “at worst” it seems pretty bad!

As a reminder, Protect Democracy and the Yale Media Freedom and Information Access Clinic filed this Second Circuit amicus brief (with me as client and co-counsel) in United States v. Mackey.

Mackey was convicted “under 18 U.S.C. § 241 for conspiring “to use Twitter to trick American citizens into thinking they could vote by text and stay at home on Election Day—thereby suppressing and injuring those citizens’ right to vote.” Gov’t Br. 2. Mackey has argued that section 241 does not cover such a scheme and that the law is facially unconstitutional under the First Amendment because it punishes too much protected speech.

In our brief, we explain that the statute, properly construed, both bars lies about when, where or how people vote intended to deprive people of their right to vote and that limiting section 241 to such empirically verifiable false speech assures that the law does not violate the First Amendment.

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“Supreme Court allows sanctions against Trump-allied lawyers over 2020 election lawsuit”

NBC News:

The Supreme Court on Tuesday rejected appeals brought by Trump-allied lawyers who faced legal sanctions for baselessly alleging in court that the 2020 election in Michigan was fraudulently won by President Joe Biden.

By rejecting the appeals, the court left in place a June 2023 ruling by the 6th U.S. Circuit Court of Appeals that partially upheld the sanctions.

Prominent cheerleaders of former President Donald Trump’s efforts to overturn the election including Sidney Powell and Lin Wood were among the nine lawyers who initially faced sanctions for filing the lawsuit. Powell called the group “the Kraken.”…

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Yale Law Journal Forum Collection: State and Local Corruption After Percoco and Ciminelli

This looks like it will be very useful:

FORUM

What Are Federal Corruption Prosecutions for?

Lauren M. Ouziel

This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosec…

FORUM

Demoralizing Elite Fraud

Zephyr Teachout

The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skep…

FORUM

The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco

Ciara Torres-Spelliscy

In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to …

FORUM

Navigating Between “Politics as Usual” and Sacks of Cash

Daniel C. Richman

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting an…

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In Trump Immunity Case at SCOTUS, Alabama and 21 States Ask for Stay Because of “Speculation,” “True or Not” That Trump Election Subversion Prosecution “was Calculated to Silence or Imprison President Biden’s Political Rival”

Shameless:

The sudden urgency has invited public speculation that this case has an improper purpose—to influence the 2024 election. Amici States represent millions of Americans, many of whom worry that the timing of this prosecution was calculated to silence or to imprison President Biden’s political rival.


True or not, such fears are deeply corrosive. And by acquiescing in the rush to trial, the courts below have only amplified the perception of impropriety. Denying the stay would greenlight the prosecution to proceed at breakneck speed and to put the apparent frontrunner for the presidency on trial in the lead up to the election. Granting a stay would calm the fervor, reassure the public, and permit the normal and orderly review of these weighty issues. Properly understood, the public interest demands a stay.

The brief asks for the Supreme Court to impose a “semblance of normalcy.” Indeed.

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“New York hush money case will be first Trump criminal trial, scheduled for March”

WaPo:

 A judge said Thursday that jury selection for Donald Trump’s trial would begin on March 25, setting a date with history for what would be the first criminal prosecution of an ex-president — one who also leads the Republican field of 2024 candidates for the White House.

Trump watched from a defense table in Manhattan criminal court as New York Supreme Court Justice Juan Merchan said he will go forward with the trial on charges the former president falsified business records during the heat of the 2016 political campaign in order to keep secret a past sexual liaison with an adult film star. The judge said he expects the trial to take roughly six weeks.

Defense attorney Todd Blanche pushed back hard, saying the defense team needs more time to prepare and that a trial will unfairly intervene with the former president’s quest to return to the White House. He also noted that Trump is scheduled for trial in late May in Florida, on charges of illegally retaining classified documents and obstructing government attempts to retrieve them. The judge in that case, however, has indicated she may delay the proceedings to allow more time for the lawyers to review highly classified evidence….

There is still a chance the New York trial could end up taking a back seat to a separate federal case against Trump for allegedly conspiring to obstruct the results of the 2020 election. But those charges, filed in Washington, have been hung up for months on an appeals fight over Trump’s claims of presidential immunity. While one appeals court ruled unanimously against him, Trump may still try to make that argument to the Supreme Court, which could keep that trial on hold for weeks or months more….

Trump faces 34 counts of falsifying business records, a felony in New York where there is an intent to defraud that includes intent to “commit another crime or to aid or conceal” a crime. In announcing the charges, Bragg said the goal of Trump’s scheme was to cover up violations of New York election law, which makes it a crime to conspire to illegally promote a candidate. Bragg also said the $130,000 payment exceeded the federal campaign contribution cap.

I’ve been skeptical of this prosecution as a felony. See my April 2023 Slate piece, Donald Trump Probably Should Not Have Been Charged With (This) Felony.

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“Election Denial Can’t Overcome Election Certification Protections”

Lauren Miller:

Election certification has long been an unfamiliar term to most Americans, and for good reason. Certification, the statutory process by which officials sign off on the accuracy and completion of election results, usually serves as an important but drama-free formality carried out after the excitement of an election winds down.

Then came the 2020 election and its false claims of widespread voter fraud. On January 6, insurrectionists supporting President Trump stormed the Capitol in an attempt to stop Congress from certifying the election results. Despite the attack, certification ultimately proceeded as planned. And nearly two years later, Congress succeeded in passing reforms that will make it more difficult for partisan actors to manipulate the process of counting the Electoral College votes for president. But as my co-author Will Wilder and I explain in a new article in the Stanford Law & Policy Review, attacks on certification did not end after January 6 — they merely shifted to the local and state level.

Cochise County, Arizona, provides a prime recent example. In November 2022, the county’s board of supervisors voted against certifying the county’s general election returns, citing vague concerns that the county’s voting machines could not be trusted. But later, one of the supervisors admitted that their refusal to certify was really a protest against the election in nearby Maricopa County, where a ballot printing error ignited a firestorm of conspiracy theories that the glitch resulted in mass election fraud….

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Our Amicus Brief in United States v. Mackey: Lying About When, Where or How People Vote Violates Federal Law (18 USC 241) and Prosecution is Consistent with the First Amendment

Protect Democracy and the Yale Media Freedom and Information Access Clinic filed this Second Circuit amicus brief (with me as client and co-counsel) in United States v. Mackey. Mackey was convicted “under 18 U.S.C. § 241 for conspiring “to use Twitter to trick American citizens into thinking they could vote by text and stay at home on Election Day—thereby suppressing and injuring those citizens’ right to vote.” Gov’t Br. 2. Mackey has argued that section 241 does not cover such a scheme and that the law is facially unconstitutional under the First Amendment because it punishes too much protected speech.

In our brief, we explain that the statute, properly construed, both bars lies about when, where or how people vote intended to deprive people of their right to vote and that limiting section 241 to such empirically verifiable false speech assures that the law does not violate the First Amendment. The Supreme Court has already stated that the government “may prohibit messages intended to mislead voters about voting requirements and procedures” consistent with the First Amendment. Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1889 n.4 (2018). Further, as explained in Protect Democracy’s blog post on the filing:

The primary question before the Second Circuit in Mackey’s appeal is whether the federal civil rights statute he was convicted under – which bans conspiring to “injure” any person in their exercise of federal rights – actually bars conspiracies to circulate false information about voting mechanisms and procedures. Professor Hasen’s amicus brief explains why intentionally false statements about voting mechanisms and procedures violate federal law, and why such speech can be punished without running afoul of the First Amendment’s protections.

In particular, to establish the applicability of Reconstruction-era civil rights protection to internet memes, the brief tracks the history of legal actions protecting the right to vote back to England in 1703. That history shows, among other things, a three-century-long recognition among judges that an intentional deprivation of the right to vote constitutes an “injury” for which the law provides a remedy. As a result, the brief argues, Mackey’s conduct clearly constituted a conspiracy to “injure” under long-recognized legal principles, even if the Reconstruction Congress would have had no idea what an internet meme is.

You can find the introduction to our brief below the fold, which relies heavily on common law tort principles protecting the right to vote and its explanation in the Restatement (2d) Torts section 865.

Continue reading Our Amicus Brief in United States v. Mackey: Lying About When, Where or How People Vote Violates Federal Law (18 USC 241) and Prosecution is Consistent with the First Amendment
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“Georgia Lt. Gov. Jones accused of seeking election server access in 2020”

AJC:

Republican Lt. Gov. Burt Jones allegedly sought access to election computers in Butts County after the 2020 election, an effort that, if successful, would have been illegal, according to emails among state election officials that were shown in court Thursday.

There’s no indication that Georgia election equipment was compromised in Butts County, but a breach in Coffee County resulted in criminal charges against four people. Two of them have pleaded guilty, including Sidney Powell, an attorney who supported Donald Trump’s efforts to reverse the 2020 election results.

Jones, a state senator representing Butts County at the time, was one of 16 Republicans who attempted to award Georgia’s electoral votes to Trump after he lost to Democrat Joe Biden by about 12,000 votes.

Jones asked election officials in Butts County whether he could bring a “forensic analyst” to inspect the county’s elections management server in December 2020, according to an email from Michael Barnes, the director of the Georgia Center for Election Systems.

“This would be against the law,” responded Ryan Germany, general counsel for Secretary of State Brad Raffensperger at the time. “They are not allowed to give an unauthorized person access to their EMS server. That would be a huge security breach.”

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“A fake recording of a candidate saying he’d rigged the election went viral. Experts say it’s only the beginning”

CNN:

Days before a pivotal election in Slovakia to determine who would lead the country, a damning audio recording spread online in which one of the top candidates seemingly boasted about how he’d rigged the election.

And if that wasn’t bad enough, his voice could be heard on another recording talking about raising the cost of beer.

The recordings immediately went viral on social media, and the candidate, who is pro-NATO and aligned with Western interests, was defeated in September by an opponent who supported closer ties to Moscow and Russian President Vladimir Putin.

While the number of votes swayed by the leaked audio remains uncertain, two things are now abundantly clear: The recordings were fake, created using artificial intelligence; and US officials see the episode in Europe as a frightening harbinger of the sort of interference the United States will likely experience during the 2024 presidential election.

“As a nation, we are woefully underprepared,” said V.S. Subrahmanian, a Northwestern University professor who focuses on the intersection of AI and security.

Senior national security officials in the US have been gearing up for “deepfakes” to inject confusion among voters in a way not previously seen, a senior US official familiar with the issue told CNN. That preparation has involved contingency planning for a foreign government potentially using AI to interfere in the election.

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“Trump’s PACs Spent Roughly $50 Million on Legal Expenses in 2023”

NYT:

Donald J. Trump piled up legal expenses in 2023 as he was indicted four times, spending approximately $50 million in donor money on legal bills and investigation-related expenses last year, according to two people briefed on the figure.

It is a staggering sum. His lone remaining rival in the 2024 Republican primary, Nikki Haley, raised roughly the same amount of money across all her committees in the last year as Mr. Trump’s political accounts spent paying the bills stemming from his various legal defenses, including lawyers for witnesses….

Mr. Trump, who has long been loath to pay lawyers himself and has a history of stiffing those who represent him, has used funds in his political action committee, known as Save America, to underwrite his legal bills. The account was originally flooded with donations that were collected during the period immediately after the 2020 election when he was making widespread and false claims of voting fraud.

But with Save America’s coffers nearly drained last year, Mr. Trump sought to refill them through a highly unusual transaction: He asked for a refund of $60 million that he had initially transferred to a different group, a pro-Trump super PAC called MAGA Inc., to support his 2024 campaign.

In addition, Mr. Trump has been directing 10 percent of donations raised online to Save America, meaning 10 cents of every dollar he has received from supporters is going to a PAC that chiefly funds his lawyers.

Mr. Trump has paid legal expenses through both Save America and a second account, called the Make America Great Again PAC, which is an outgrowth of his 2020 re-election committee. In the first half of 2023, Save America transferred $5.85 million to the Make America Great Again PAC, which spent almost all of that sum on legal and investigation-related costs.

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