A lawyer allied with President Donald J. Trump first laid out a plot to use false slates of electors to subvert the 2020 election in a previously unknown internal campaign memo that prosecutors are portraying as a crucial link in how the Trump team’s efforts evolved into a criminal conspiracy.
The existence of the Dec. 6, 2020, memo came to light in last week’s indictment of Mr. Trump, though its details remained unclear. But a copy obtained by The New York Times shows for the first time that the lawyer, Kenneth Chesebro, acknowledged from the start that he was proposing “a bold, controversial strategy” that the Supreme Court “likely” would reject in the end.
But even if the plan did not ultimately pass legal muster at the highest level, Mr. Chesebro argued that it would achieve two goals. It would focus attention on claims of voter fraud and “buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump’s column.”
The memo had been a missing piece in the public record of how Mr. Trump’s allies developed their strategy to overturn Mr. Biden’s victory. In mid-December, the false Trump electors could go through the motions of voting as if they had the authority to do so. Then, on Jan. 6, 2021, Vice President Mike Pence could unilaterally count those slates of votes, rather than the official and certified ones for Joseph R. Biden Jr….
It was not the first time Mr. Chesebro had raised the notion of creating alternate electors. In November, he had suggested doing so in Wisconsin, although for a different reason: to safeguard Mr. Trump’s rights in case he later won a court battle and was declared that state’s certified winner by Jan. 6, as had happened with Hawaii in 1960.
But the indictment portrayed the Dec. 6 memo as a “sharp departure” from that proposal, becoming what prosecutors say was a criminal plot to engineer “a fake controversy that would derail the proper certification of Biden as president-elect.”
“I recognize that what I suggest is a bold, controversial strategy, and that there are many reasons why it might not end up being executed on Jan. 6,” Mr. Chesebro wrote. “But as long as it is one possible option, to preserve it as a possibility it is important that the Trump-Pence electors cast their electoral votes on Dec. 14.”
Three days later, Mr. Chesebro drew up specific instructions to create fraudulent electors in multiple states — in another memo whose existence, along with the one in November, was first reported by The Times last year. The House committee investigating the Jan. 6 riot also cited them in its December report, but it apparently did not learn of the Dec. 6 memo.
“I believe that what can be achieved on Jan. 6 is not simply to keep Biden below 270 electoral votes,” Mr. Chesebro wrote in the newly disclosed memo. “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.”