"Almost preposterous": Expert blasts Kenneth Chesebro's defense on "fake elector" plot

Former Trump lawyer and adviser Kenneth Chesebro filed a motion Monday to defend his actions in the "fake elector" scheme, arguing that the supposed Republican electors he helped convene in Georgia after the 2020 election were in fact "duly elected and certified" to vote for Donald Trump.

Chesebro, who was allegedly a central figure in the plan to send fake electors to Congress from states Trump had lost, filed a "motion to quash" just a few weeks before his case goes to trial. He argued that the court should dismiss two charges against him, including conspiring to commit false statements and writings as part of the fake elector scheme.

"What he has filed is not particularly unusual," said Atlanta defense attorney Andrew Fleischman in an interview with Salon. "In Georgia you can file a 'special demurrer' where you say that a charging instrument is not specific enough, and ask the state to refile with more specifics." But the claim that the Georgia Trump electors "were duly certified is kind of irrelevant to that argument," he continued. "Almost every 'demurrer' or motion to quash is supposed to be solely about the wording of the indictment, with no external facts."

The indictment filed by Fulton County District Attorney Fani Willis alleges that Chesebro, along with other defendants, helped file an alternative slate of Republican electors despite knowing they were making false claims, describing their slate as "duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia" who "do hereby certify" that Trump won Georgia.

In his motion, Chesebro argued that those statements were not false because the "Republican presidential electors were qualified and elected by the Republican Party." Legal experts contacted by Salon said that argument was unlikely to persuade a judge. 

"The argument is far-fetched, almost preposterous," Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. "The so-called Republican electors fraudulently claimed they were the official electors from Georgia chosen by the voters when in fact they were not, and they knew that. Chesebro knew that, but concocted this devious scheme to displace the properly chosen electors with imposters."

Chesbro's argument, which Gershman described as saying that he "didn't intend to do anything bad" is one his defense attorneys might present to a jury, rather than to a judge in a pretrial motion, Gershman added.

Caren Myers Morrison, a former federal prosecutor in New York who is now a law professor at Georgia State University, agreed, saying that Chesebro is making the kind of factual argument that is best put in front of a jury.

"If you want to quash a piece of an indictment, you basically have to show that no reasonable jury could ever find that you are guilty," Morrison said.

That's a stretch, she suggested, given that these false GOP electors sent their certifications to courts, statehouses, Congress, and the National Archives, according to Fulton County prosecutors. Those documents did not say they were intended to preserve the Trump campaign's rights if it prevailed in future litigation, Morrison said, but instead made the factual claim that the fake electors were the state's "duly elected and qualified" electors.

"He can give as much background as he wants, but there's nothing conditional about the documents that they sent out," Morrison said, offering a hypothetical example to illustrate the point:

"Let's say I write a fraudulent check for $100,000, and while I'm writing it, I say to you, 'You know, this is just a joke. I don't really mean it,'" Morrison said. "But then I take it to the bank and try to deposit it. What does it matter to you that I said it was a joke if I'm actually trying to cash the check? If the check is fraudulent, the check is fraudulent."

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Chesbro and 18 co-defendants were charged last month over their efforts to reverse Trump's defeat in the 2020 election in Georgia. Willis used Georgia's Racketeer Influenced and Corrupt Organizations Act to construct a sweeping indictment of all 19 individuals, including the former president.

Judge Scott McAfee, who is overseeing the case, approved an expedited trial for Chesebro and attorney Sidney Powell which is set to begin Oct. 23, severing their case from those of the other 17 defendants. 

There is significant risk for Willis' larger prosecution in this first trial, according to Fleischman. If a jury acquits Chesebro "because they think he meant for the jurors to be contingent," he said, that will likely help Trump "because it potentially knocks down some of the RICO claims against him. It's going to be very hard to keep future jurors from learning about that acquittal."