Experts: Leaked secret memo shows the “real architect” of Trump’s Jan. 6 “criminal scheme”

"You know it's a problem when your lawyer isn't willing to say he's advising you to follow the plan he's proposing"

By Tatyana Tandanpolie

Staff Writer

Published August 9, 2023 12:42PM (EDT)

Former President Donald Trump boards his airplane, known as "Trump Force One," after speaking at a campaign event, at the Manchester-Boston Regional Airport on Thursday, April 27, 2023, in Manchester, NH. (Jabin Botsford/The Washington Post via Getty Images)
Former President Donald Trump boards his airplane, known as "Trump Force One," after speaking at a campaign event, at the Manchester-Boston Regional Airport on Thursday, April 27, 2023, in Manchester, NH. (Jabin Botsford/The Washington Post via Getty Images)

Kenneth Chesebro, a lawyer connected to then-President Donald Trump, first outlined a scheme to install false slates of electors to overturn the 2020 election in a previously secret internal campaign memo prosecutors have signaled forms a key segment in the timeline of the Trump team's effort's transformation into a criminal conspiracy.

The existence of the Dec. 6, 2020, memo was revealed in Trump's latest criminal indictment last week, though details about its contents were unclear. The New York Times obtained a copy of the communication, which shows that Chesebro knew at the outset that he was presenting "a bold, controversial strategy" that the Supreme Court would "likely" reject in the grand scheme.

He argued that the plan would home in 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." The strategy would have involved the false Trump electors going through the same motions in mid-December as real electors. On Jan. 6, Vice President Mike Pence could then count those slates of votes rather than the certified ones for President Joe Biden.

Though that basic plan was already known to the public, the prosecutor-described "fraudulent elector memo" details information about the plot's origins and the discussion around it. Amid those new details is Chesebro's suggested "messaging" strategy to explain pro-Trump electors' meetings in states Biden won. That campaign would call that step "a routine measure that is necessary to ensure" Congress could count the correct electoral slate if legislatures or courts later found that Trump had actually won in those states.

The Dec. 6 memo showed that Chesebro suggested Pence could count purported Trump electors from a state as long as a lawsuit was already pending there challenging Biden's declared victory. He also proposed informing the public that the Trump electors would be meeting on Dec. 14 as an added precaution.

"There is no requirement that they meet in public. It might be preferable for them to meet in private, to thwart the ability of protesters to disrupt the event," he wrote, adding: "Even if held in private, perhaps print and even TV journalists would be invited to attend to cover the event."

Chesebro had previously also proposed creating slates of alternate electors in November 2020 in Wisconsin to protect Trump's rights in the event he later won a court battle and was deemed that state's certified winner by Jan. 6 as had occurred with Hawaii in 1960.

The indictment, however, which describes Chesebro as Co-Conspirator 5, noted that his Dec. 6 memo was a "sharp departure" from the Wisconsin proposal, ultimately spearheading what prosecutors called a criminal scheme to concoct "a fake controversy that would derail the proper certification of Biden as president-elect."

"I recognize that what I suggest is a bold, controversial strategy, and that there are many reasons why it might not end up being executed on Jan. 6," Chesebro wrote. "But as long as it is one possible option, to preserve it as a possibility it is important that the Trump-Pence electors cast their electoral votes on Dec. 14."

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Three days later, Chesebro drafted specific instructions for how to create fraudulent electors in multiple states in another memo, which the Times first reported, along with the Nov. 18 communication, last year. 

"I believe that what can be achieved on Jan. 6 is not simply to keep Biden below 270 electoral votes," Chesebro wrote in the newly revealed memo. "It seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count 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."

Chesebro and his lawyer did not respond to the Times' requests for comment, nor did a Trump spokesperson respond to an email request for comment.

"Read the memo written by unindicted co-conspirator Kenneth Chesebro laying out his plan to steal the election. He said he was 'not necessarily advising' adopting the 'controversial' plan," former federal prosecutor Renato Mariotti tweeted. "A stain on the legal profession and a dark chapter in our history,"

"You know it's a problem when your lawyer is not willing to say he's advising you to follow the plan he's proposing," he added.

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Prosecutors are still hearing evidence in the investigation even after filing charges against the former president, sources told the Times. Last year, the House committee released emails obtained by its investigators that showed Chesebro had sent copies of the two previously reported memos to allies in the states participating in the fake electors plot. Chesebro, however, did not attach his Dec. 6 memo outlining the scheme to those messages.

"While John Eastman became a household name and hung out at the White House with Trump, the real architect of the fake elector strategy and the related 'Pence can decide!' theory was always Ken Chesebro," MSNBC legal analyst Lisa Rubin wrote on X, the platform formerly known as Twitter.

Like in the November memo, Chesebro cited Harvard Law School professor Laurence Tribe's writing to support his arguments that the deadlines and procedures outlined in the Electoral Count Act are unconstitutional and that state electoral votes do not have to be finalized until Congress' Jan. 6 certification. Chesebro had worked as a research assistant for Tribe as a law student and went on to help him represent Vice President Al Gore in the 2000 election.

He called Tribe "a key Biden supporter and fervent Trump critic" in his descriptions of the professor's legal views alongside writings from other liberals to buttress a messaging strategy. It would be "the height of hypocrisy for Democrats to resist Jan. 6 as the real deadline, or to suggest that Trump and Pence would be doing anything particularly controversial," he wrote.

In an essay published Tuesday on legal website Just Security, Tribe pushed back against Chesebro's "gross misrepresentation of my scholarship" in his Nov. 18 memo. Tribe asserted that, in quoting a clause from a law review article he wrote about Bush v. Gore to buttress the notion that the only real legal deadline is Jan. 6, Chesebro took his argument, which was only "discussing the specifics of Florida state law," out of context. 

Tribe also countered Chesebro's argument by citing a constitutional treatise where he wrote that a past Congress can't restrict the actions of a later Congress, which Chesebro used to support his claim that parts of the Electoral Count Act are unconstitutional. Tribe clarified that he meant Congress can pass new legislation changing such a law.

"The 12/6 Memo repeats the same misrepresentation of [Tribe's] work as did Chesebro's 11/18 Memo. Chesebro knew better," NYU Law professor Ryan Goodman, who once served as a special counsel to the general counsel in the Department of Defense, wrote on X. "Looks like he was creating a false sense of legal legitimacy - as part of the criminal scheme."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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