Read the Trump-world legal memo that a judge ruled was likely part of a criminal effort to overturn the election.
An attorney sketched out a plan for then-Vice President Mike Pence to halt the certification of Joe Biden’s victory.
The Jan. 6 select committee last week publicly released a long-hidden memo that a federal judge previously determined was evidence of “likely” felonies by Donald Trump and attorney John Eastman.
The document: It’s a Dec. 13, 2020, email from a little-known attorney who had been advising Donald Trump’s legal team, Kenneth Chesebro. He sent it to Rudy Giuliani, sketching out a plan for then-Vice President Mike Pence to halt the certification of Joe Biden’s victory on Jan. 6, 2021. He dubbed it the “‘President of the Senate’ strategy.”
Chesebro’s memo became public last week as a little-noticed exhibit in a legal battle between the Jan. 6 select committee and John Eastman, who conferred with Chesebro about that last-ditch strategy to delay or prevent the certification of Biden’s election. U.S. District Court Judge David Carter described the memo in his March ruling as perhaps “the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act” — the law that governs the transition of power — into a day-by-day plan of action.” Carter wrote in his opinion that this memo “likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States.” He ordered it released to the select committee under the “crime-fraud” exception to attorney client privilege.
The strategy: The plan offered by Chesebro depended on the existence of competing slates of presidential electors in a handful of states where Biden won the popular vote. In fact, just a day after Chesebro sent his memo to Giuliani, pro-Trump activists gathered in several state capitals and signed documents falsely claiming to be the true presidential electors from their states.
Then, Chesebro’s strategy required Pence to “firmly take the position that “he, and he alone, is charged with the constitutional responsibility not just to open the votes, but to count them—including making judgments about what to do if there are conflicting votes.”
– Jan 3-5: Chesebro suggested that members of the Senate hold hearings in the days before the Jan. 6 session. In particular, he wanted Sen. Lindsey Graham (R-S.C.), then chair of the Judiciary Committee, to focus on Pence’s power to count electoral votes. A Graham spokesman emphasized that he held no hearings on this subject at the time. His office has declined to say whether any of Trump’s lawyers approached him about the plan.
– Jan. 6: Chesebro suggested that Pence should immediately recuse from running the electoral vote count, citing a “conflict of interest” and hand the gavel to Sen. Chuck Grassley or another senior Republican senator. Then, that senator would lead the count but refuse to accept any electors in the states Trump was contesting. Instead, the senator would contend that if those states wanted to be counted, they had to rerun their elections, engage in more litigation or have their legislatures appoint new electors.
– Post-Jan. 6: Here Chesebro essentially suggests to let the chips fall. The Supreme Court might step in and overrule the Trump gambit or sidestep it by declaring it “nonjusticiable.” But he said even trying and failing would be a worthy attempt and could resolve in unpredictable ways, such as the selection of Pence as president.
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