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Newly revealed memo 'undercuts the defense we're hearing now' from Trump's fake electors
February 3, 2022 3:43PM ET
Donald Trump during an interview with Axios. (YouTube/Screenshot)
A Wisconsin attorney was heavily involved in the formulation of a plan to put forward Republican electors who voted for President Donald Trump after his election loss in 2020, according to a report in the New York Times.
Former Dane County Circuit Court Judge Jim Troupis had been hired by the Trump campaign to litigate Trump’s calls for recounts in liberal-leaning Dane and Milwaukee Counties. On Nov. 18, 2020, the same day Troupis filed paperwork to call for the recounts, the former judge received a memo, which was obtained by the New York Times, from another attorney that outlined the strategy for putting forth an alternate slate of electors in an effort to overturn the results of the election.
The memo shows just over two weeks after the election, Trump allies and lawyers were formulating a plan to overturn the results, and from early on, the date Jan. 6 was highlighted as the last chance to keep Trump in power. The memo also shows that from the beginning, Wisconsin was at the epicenter of Republican efforts to keep Trump in power.
The memo was sent to Troupis by Boston-area attorney Kenneth Chesebro with the subject line “The Real Deadline for Settling a State’s Electoral Votes.” Chesebro argues that Republicans could meet in Madison on Dec. 14 and cast electoral college votes for Trump, setting up Jan. 6 as the final deadline to keep Trump in office.
“Assuming the electors pledged to Trump and Pence end up meeting at the Wisconsin Capitol on December 14 to cast their votes, and then send their votes to the President of the Senate in time to be opened on January 6, a court decision (or, perhaps, a state legislative determination) rendered after December 14 in favor of the Trump-Pence slate of electors should be considered timely,” Chesebro wrote to Troupis.
Chesebro also wrote that the strategy of having a second slate of electoral college voters meet in Wisconsin even though Biden had been determined the winner following a series of recounts and lawsuits, was “reasonable” under federal law.
“It may seem odd that the electors pledged to Trump and Pence might meet and cast their votes on December 14 even if, at that juncture, the Trump-Pence ticket is behind in the vote count, and no certificate of election has been issued in favor of Trump and Pence,” Chesebro wrote. “However, a fair reading of the federal statutes suggests that this is a reasonable course of action.”
Chesebro and Troupis weren’t the only Republicans considering how to change Wisconsin’s electoral votes. On November 16, Assembly Speaker Robin Vos (R-Burlington) received a memo from the Legislative Reference Bureau (LRB) that shows he sought advice on whether or not the Legislature could change the slate of electors.
The memo, which was obtained by nonprofit watchdog American Oversight, shows the LRB telling Vos that the Legislature can’t change who the chosen electors are after the election is held.
“In summary, while the Legislature has broad power under the U.S. Constitution to determine by law the manner of appointment of the state’s presidential electors, because the Wisconsin Legislature, by statute, has given the people of the state the power to elect presidential electors at the presidential election, the Legislature has no power to affect the selection or actions of presidential electors after the election,” the memo states.
On December 9, Chesebro sent a second memo to Troupis outlining the exact procedures the false electors must take and the relevant state laws in the six battleground states in which the strategy was being considered — Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. Chesebro added that in Wisconsin, putting forth a second set of electors would be entirely legal.
“In conclusion, it appears that voting by an alternate slate of electors is unproblematic in Arizona and Wisconsin; slightly problematic in Michigan (requiring access to the senate chamber); somewhat dicey in Georgia and Pennsylvania in the event that one or more electors don’t attend (require gubernatorial ratification of alternates); and very problematic in Nevada (given the role accorded to the Secretary of State),” Chesebro wrote.
On December 14, as Wisconsin’s 10 real electors met in the state Capitol to cast their votes for Biden, a second group met in a different part of the Capitol to cast votes for Trump. Despite Chesebro’s assertion that this meeting was “reasonable” and “unproblematic,” those 10 electors have now been accused of fraud and subpoenaed by the committee investigating the Jan. 6 insurrection.
Robert Spindell, a Republican appointee of the Wisconsin Elections Commission, has had Democratic lawmakers call for his removal from the body in charge of state election administration — but Senate Majority Leader Devin LeMahieu (R-Oostburg) has defended Spindell, saying the calls for removal are “legal theater.”
Jeff Mandell, an attorney for progressive legal outfit Law Forward who has been at the forefront of efforts to prosecute the false electors, says what is striking about the memos are how early Wisconsin was involved in a deliberate effort to change the election results.
“It looks like from everything we know, Wisconsin was at the center of that plan from the beginning,” he says. “It looks like this was fully considered for weeks and planned and deliberate. This was not a spur of the moment decision or a slapdash idea that was thrown together. Increasingly it is clear that this was coordinated on a federal level and deeply planned, which makes it all the more disturbing.”
Mandell adds that he doesn’t think the memo is a very persuasive legal argument, especially considering how it shows the rationalizations prior to the casting of the alternate electoral votes don’t match the excuses Republicans have made since.
“It actually undercuts the defense we’re hearing now from the fraudulent electors,” Mandell says. “That defense, as I understand it, is that they had no choice but to do what they did because the judicial process hadn’t finished. The memo says the opposite. The memo says, essentially, that states need to finish resolving their controversies before the electoral votes can be cast and the state had finished resolving its controversies. The Wisconsin Supreme Court went to tremendous lengths to make sure it could issue a decision before the Electoral College met.”
Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: info@wisconsinexaminer.com. Follow Wisconsin Examiner on Facebook and Twitter.
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