‘False electors’ may be a scheme

but is it a crime — or a legal stratagem?

Even this 33-year dues-paying RINO can differentiate between the attempted insurrection of January 6 (2021) and the so-called “false electors” scheme.

The former was criminal and violent. It did succeed, albeit for only about 12 hours. The latter did not succeed and falls within the rubric of the previous court challenges, however much a Hail Mary. Hardly criminal. 

Today’s New York Times recounts the role of Wisconsin attorney Kenneth Chesebro and former Dane County Judge Jim Troupis (a personal friend) in the alternate electors strategy. Chesebro himself, the author of that strategy, admitted his approach was “a bold, controversial strategy” that the Supreme Court “likely” would reject in the end.

The 10 Wisconsin electors and Troupis are defending a lawsuit filed in May 2022 by two Democratic electors and a voter represented by Madison-based Law Forward and the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center. The suit seeks $2.4 million. (Pick a number!)

A “crucial link” to a criminal conspiracy is not necessarily criminal itself.

The alternate electors gambit may well have been “a crucial link in how the Trump team’s efforts evolved into a criminal conspiracy,” as the leftist newspaper describes it. But logic dictates that a “crucial link” to a criminal conspiracy is not necessarily criminal itself. For want of a better analogy, the purchase of a firearm may be a crucial link to a murder but is not itself criminal. The NY Times writes: 

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.

— New York Times

Hardly criminal! 

The 1960 Hawaii precedent

The Times continues:

Mr. Chesebro, who is described as Co-Conspirator 5 in the indictment but has not been charged by the special counsel, addressed the second memo to James R. Troupis, a lawyer who was assisting the Trump campaign’s efforts to challenge Mr. Biden’s victory in Wisconsin.

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.

Prosecutor Jack Smith’s indictment of Trump portrayed the second memo, issued Dec. 6, as a “sharp departure” from that proposal, indeed, a criminal plot. But even the Times admits Chesebro acknowledged that the stratagem would work only “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.”

(The Times goes on to speculate that Conspirator #6 is Boris Epshteyn, a campaign strategic adviser for the Trump campaign who was paid for political consulting. “That day, Mr. Epshteyn sent Mr. Giuliani an email recommending lawyers in those seven states.”)

→ Politico breaks down Chesebro’s three memos to Troupis: November 18, December 6, and December 9, 2020. 

Blaska’s Bottom Line: The NY Times writes that Chesebro cited Harvard Law School professor Laurence H. Tribe 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. Tribe disputes Chesebro’s reading. 

Isn’t that what lawyers do?