News/Commentary

Trump attorney’s memo outlining ‘bold, controversial strategy’ is key

August 9, 2023 | | Print Article

Special prosecutor Jack Smith’s latest indictment against former President Donald Trump is reportedly based heavily on a previously secret memo written by one of Trump’s attorneys.

Revealed in the indictment filed last week, the Dec. 6th, 2020 memo from attorney Kenneth Chesebro “laid out a plot to use false slates of electors to subvert the 2020 election,” according to The New York Times.

Prosecutors have described the memo as a plot to set up “a fake controversy that would derail the proper certification of Biden as president-elect.”

What’s key about this memo is that in it Chesebro “acknowledged from the start that he was proposing ‘a bold, controversial strategy’ that the Supreme Court ‘likely’ would reject in the end,” the Times notes.

In other words, he knew he was toying with the truth. But he did it anyway to “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 Times reported, quoting from the 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,” Chesebro wrote.

The plan specifically called for false electors to file their votes on Dec. 14th, 2020, and for then-Vice President Mike Pence to later count the false electors’ votes rather than the official ones on Jan. 6th.

Chesebro further reportedly recommended the Dec. 14th meeting be portrayed as “a routine measure that is necessary to ensure” that the correct electoral slate would be counted by Congress. And since the meeting would be controversial, he also recommended it be held behind closed doors.

One interesting part of the memo is quotes from leftist Harvard Law School professor Laurence H. Tribe.

Chesebro used the quotes “to bolster his argument that the deadlines and procedures in the Electoral Count Act are unconstitutional and that state electoral votes need not be finalized until Congress’s certification on Jan. 6,” according to the Times.

He specifically “cited what he described as Mr. Tribe’s legal views, along with writings by several other liberals as potential fodder for a messaging strategy.”

It would be “the height of hypocrisy for Democrats to resist Jan. 6 as the real deadline, or to suggest that Trump and Pence would be doing anything particularly controversial,” he reportedly wrote.

Tribe has, for his part, since released a column pushing back on Chesebro’s arguments:

“[I]n quoting and citing two pages of an article I wrote in the Harvard Law Review, the Memorandum makes me stand for the outlandish proposition that, whatever Congress might say and whatever the State’s chief executive might have certified as its official Electoral Slate, any State is free to continue ‘recounting’ the votes cast in that State’s presidential election until January 6, two weeks before the impending presidential inauguration,” the column reads.

“To compound that problem, Chesebro uses that proposition as support for the myth that the way Hawaii’s electoral votes were counted for Kennedy over Nixon in the 1960 presidential election ‘buttresses’ my supposed ‘conclusion’ and thereby supports this imagined power of each State in the election process,” it continues.

Tribe goes on to accuse Chesebro of having “grossly misrepresent[ed]” his words.

All this comes roughly a week after Trump was indicted on four counts related to his alleged efforts to undermine the 2020 presidential election.

The four-count indictment “chronicles a months-long campaign of lies about the election results and says that, even when those falsehoods resulted in a chaotic insurrection at the Capitol, Trump sought to exploit the violence by pointing to it as a reason to further delay the counting of votes that sealed his defeat,” according to the Associated Press.

“The attack on our nation’s Capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy. It was fueled by lies, lies by the defendant targeted at obstructing a bedrock function of the U.S. government: the nation’s process of collecting, counting and certifying the results of the presidential election,” Smith, the lead prosecutor, wrote.

Critics say the prosecution is unfair and unjust given how many times Democrats have themselves tried to use false electors to win an election.

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Vivek Saxena
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