The attorney who first developed the fake electors plot emphasized to TPM last year that the Trump campaign’s disputes over the election were in good faith. Now, special prosecutor Jack Smith says that key aspects of them were “pretext,” aimed squarely at keeping a criminal scheme alive.
In Tuesday’s indictment of President Trump, Smith homes in on the fake electors scheme, a plot that the Trump campaign ran to have electors from states Trump lost cast their votes anyway. The electors would allow Trump to “preserve” his slate, Trump attorneys reasoned. The electors would then swing into action if a court, state official, or Congress on January 6 decided that Trump won.
The scheme relied on a premise: that the election in each state was in real dispute, giving Trump a legitimate reason to need backup electors.
Per Smith, the attorney who first presented the idea was “Co-Conspirator 5.” The description closely matches that of Kenneth Chesebro, a former protégé of Harvard Law Professor Larry Tribe who studied alongside future Supreme Court justice Elena Kagan and journalist Jeffrey Toobin in law school.
Across multiple interviews last June in Midtown Manhattan, where he was living at the time, Chesebro asserted to TPM that his advocacy for the Trump campaign — which included the creation of slates of fake electors and the filing of lawsuits challenging the election — were part and parcel of normal legal practice.
“This is what lawyers do,” he told TPM, in the only on-record interview that Chesebro has given to date.
Yet Smith cast Chesebro’s actions as a cynical ploy to create a “pretext” — including via filing lawsuits — so that the fake electors would have a reason to exist.
Chesebro last year emphasized to TPM that he saw dispute, without commenting on the merits of each side, as a natural part of his job.
“As a lawyer I have to think, the more debate the better, and that usually the side with the better argument will end up winning, at least over the long term,” he said.
But what Smith lays out is an evolution from a strategy focused on preserving Trump’s electoral votes to, as the indictment puts it, “a corrupt plan to subvert the federal government function by stopping Biden electors’ votes from being counted and certified.”
After Chesebro laid out the idea for the fake electors scheme, the Trump campaign “expanded it to any state” that Trump said was “contested” — regardless of whether there was any remaining dispute over the outcome.
“We just need to have someone coordinating the electors for states,” Mark Meadows wrote in a Dec. 6 email sent to Trump campaign staff that was cited by Smith’s office. A memo from Chesebro outlining aspects of the the scheme was allegedly attached.
The RNC was partly on board at first, Smith said.
A “co-conspirator” who matches John Eastman’s description purportedly spoke with RNC Chairwoman Ronna McDaniel on Dec. 6, where she was falsely told that the votes “would be used only if ongoing litigation” changed the results in one of the states.
From there, the scheme continued, but not as a way of “preserving” the legal option of Trump’s victory, but rather as a means to force it through.
On Dec. 11, Chesebro allegedly spoke with an Arizona attorney on behalf of Rudy Giuliani. Chesebro allegedly told the lawyer to, in the indictment’s words, “file a petition for certiorari in the Supreme Court as a pretext to claim that litigation was pending in the state, to provide cover for the convening and voting of the Defendant’s fraudulent electors there.”
Per the indictment, Chesebro related something that he had heard from Giuliani: that an Arizona state official thought “it could appear treasonous” for the state’s Trump electors to vote “if there is no pending court proceeding.”
At the core of this is whether there was any real dispute over the election’s outcome. By December 2020, it was long clear that Biden had won.
But per Smith, Chesebro kept the efforts to create the appearance of a “dispute” going — in a Dec. 13 email to Giuliani, Chesebro purportedly wrote that the plan was not only to preserve the electors in case they won a lawsuit, but rather to, in the indictment’s words, “falsely present the fraudulent slates” before Congress on January 6.
That kept the Trump effort going for weeks more, until the violence which interrupted the joint session certifying Biden’s win. And, too, relied on the pretense of there being a continued “dispute” in the election that had to be aired out.
Or, as Chesebro phrased it last year to TPM, the fake electors needed to exist because of disputes which he raised in litigation brought before the Supreme Court and other venues.
“If you don’t know for sure the final result by December 14, it can be prudent to have multiple electors cast the ballots,” he told TPM. “The problem is that the votes had to be cast before.”
Over the next few weeks, Smith wrote, various elements of Trump’s attempt to reverse his loss would come to rely on the fake electors: A Trump flunkie at the DOJ tried to have federal law enforcement urge state legislatures to appoint the fake electors instead of the Biden ones; Trump himself “berated” Pence in a failed bid to have him reject the Biden electors to make room for the fake ones.
Smith presented the violence of January 6 as directly downstream of the fake disputes over the election that Trump and his attorneys propagated.
When asked about the violence on January 6, Chesebro also cast it to TPM in terms of a lost chance at keeping the debate alive.
“But I was also very disappointed that some serious legal issues that senators and representatives had planned to debate at length were never debated regarding various states,” he said. “It was the worst possible thing that could have happened in terms of lawyers that had serious concerns about the election in several states, that were never really addressed on the merits.”
Smith recounted another episode in the indictment, this time involving New Mexico, that presented his argument about pretext in particularly stark terms.
Trump had lost that state by more than ten percent. But on Dec. 13, one day before the deadline, Chesebro allegedly drafted and sent fake elector certificates to Trump electors in the state.
There was a problem: the Trump campaign had filed no lawsuits contesting the result in the state. Per Smith, the campaign decided to sue, thereby creating a “pretext” so the fake electors could vote.
The deadline for the electors to vote was noon. The New Mexico suit, Smith said, was filed at 11:54 a.m.
