In efforts to overturn the 2020 presidential election, two of Donald Trump’s co-conspirators had a court hearing on Wednesday. They sought a speedy trial—but not the same speedy trial. Sidney Powell and Kenneth Chesebro are stuck with each other after Fulton County Superior Court Judge Scott McAfee ruled that they should be tried together starting on Oct. 23. If that Wednesday hearing was an indication of what we’re going to get as Chesebro and Powell go on trial, buckle up. It’s going to be interesting—and Powell may not be the only one starring in the clown show.
Powell and Chesebro are both included in racketeering charges, along with Donald Trump and every other Georgia co-defendant. Their direct participation came in different parts of the coup attempt, with Powell facing charges for accessing election equipment without authorization and Chesebro having been one of the architects of the false electors scheme.
In court on Wednesday, Chesebro’s attorney, Manubir Arora, wanted it known that this was some complicated stuff. Like, really complicated. “On our side, we will have intellects talking about, is the ECA constitutional, is it not, what is the 12th Amendment,” he said. “I mean, frankly, judge, prior to this case, I didn’t know what the 12th Amendment was, because I’d never even thought about it, I don’t know if anybody in this room had really thought about it.”
As a defendant, it seems like you would want your lawyer to know about the constitutional provision you’re charged with violating. But this may be a strategy for more than just getting Chesebro’s very intellectual case severed from Powell’s more pedestrian matter. Part of Chesebro’s defense could involve attempting to convince the judge (and ultimately, the jurors) that if only one were a constitutional law expert like Chesebro—but not his own lawyer—one could more fully appreciate that he did not do anything criminal.
What Chesebro did do, and will attempt to show was not illegal, was come up with the false electors strategy to “create a scenario under which Biden can be prevented from reaching 270 electoral votes, even if Trump has not managed by then to obtain court decisions (or state legislative resolutions) invalidating enough results to push Biden below 270,” as he wrote in a December 2020 memo. So from the beginning, the plan was to find a way to block Biden’s win even if efforts to do so through the courts or the state legislatures failed.
Shortly after that memo, Chesebro wrote an email that, according to federal prosecutors, “further confirmed that the conspirators’ plan was not to use the fraudulent electors only in the circumstance that the Defendant’s litigation was successful in one of the targeted states—instead, the plan was to falsely present the fraudulent slates as an alternative to the legitimate slates at Congress’s certification proceeding.”
Along the way, he dramatically misrepresented the work of legal scholars like his former mentor Laurence Tribe, “concoct[ing] arguments that gave the scheme an air of legitimacy but one that could not withstand public scrutiny,” as Tribe wrote in a piece concluding that “we now have good reason to doubt that Chesebro was ever principled enough to say what he really thought as opposed to what he thought it would help him to have others believe he thought,” and, about his actions, that “removing the guardrails of the Electoral Count Act as Chesebro sought to do could grievously endanger our entire system of self-government under law.”
The 12th Amendment, as Chesebro’s lawyer presumably knows by now, details how electors meet and vote and send in those votes, after which, “[t]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” Chesebro’s defense has to hinge on an argument that it’s fine to try to get the president of the Senate (also known as the vice president of the United States) to set aside the actual results of a presidential election and count the votes of fake electors representing the losing candidate. Because that’s what he did.
It wasn’t the only part of Trump’s coup attempt, but it was an important part of laying the groundwork for the violence of Jan. 6.
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