Opinion | Another harebrained idea from Kenneth Chesebro

He likely never imagined that he would wind up joined at the hip with his client, former president Donald Trump, as a criminal defendant. But, alas, all of the above landed him an indictment in state court and the status of unindicted co-conspirator No. 5 in a federal case.

And then he made things worse.

Chesebro this past week apparently figured he would catch Fulton County District Attorney Fani T. Willis unprepared. He moved, as he is entitled, for a speedy trial. Willis shot back: She’ll try all 19 defendants beginning Oct. 23. Oops! The judge agreed with Willis and set Chesebro’s trial for Oct 23.

The four-time-indicted Trump moved to sever his case (get tried separately) from Chesebro. His objective is to delay any trial or conviction beyond the 2024 election. (Chesebro’s ability to go to trial so quickly might harm Trump’s protests that he will need years to prepare.) One can expect many, if not all, other defendants to also sever their cases from Chesebro’s. That would leave Chesebro all by himself facing state charges under the racketeering statute as well as for charges of conspiracy to commit impersonation of a public official, conspiracy to commit forgery and conspiracy to commit filing false documents.

Willis might have a clean shot at a single defendant against whom there is replete evidence. In a televised trial, Americans will see the ton of evidence of the alleged “criminal enterprise” and understand just how dramatically a trial differs from right-wing media spin. (And though Trump might find a “holdout” juror to a get a hung jury, the chance that someone will feel as committed to exonerating Chesebro is small.) Moreover, with a trial teed up, the pressure on Chesebro to “flip” might be intense. None of this portends well for Trump or for Chesebro. The last thing Trump wants is a conviction of one of his alleged co-conspirators.

How strong a case against Chesebro does Willis have? Very. Chesebro authored a Nov. 18, 2020, memo recommending an alternative slate of electors in states where litigation was still pending. In a Dec. 6, 2020, memo, Chesebro advised that they could drum up phony electors in six states to give Vice President Mike Pence the opportunity to throw the election to Trump.

On MSNBC (where I am a contributor), legal experts and lawyers Norman Eisen and Joshua Kolb explained:

Chesebro himself indicated in the memo that he knew this legal theory was dubious, using euphemisms like “bold” and “controversial” to describe it. He acknowledged that the Supreme Court would “likely” reject it. Nevertheless, the memo bluntly declares a goal that was allegedly criminal: to “prevent Biden from amassing 270 electoral votes” even though Biden had legitimately won more than that number. . . . It’s clear Chesebro’s true intention was not to present a neutral or even novel legal theory. This was fundamentally a political strategy, cloaked in the garb of the law.

The Dec. 6 memo is damning in part because Chesebro misrepresents the work of his former mentor Laurence H. Tribe. But Tribe blew the whistle on Chesebro’s gambit. Tribe, writing for Just Security, explained, “Specifically, in an apparent effort to get around the obviously binding force of the Electoral Count Act — as to which John Eastman infamously wrote Vice President Pence’s chief counsel to ‘implore’ him to consider ‘one more relatively minor violation’ of the ECA (para 122) — Chesebro completely misused part of the latest edition of my constitutional law treatise.”

Tribe, of course, never suggested that Pence could engage in a stunt, never suggested that Congress could choose different electors willy-nilly and never suggested that the Dec. 14 date for finalizing electors could be extended. Tribe joined in an ethics complaint filed with the New York bar.

Put differently, Chesebro went from recommending backup electors to recommending “alternatives” or fake ones that would cast votes even when no legal dispute existed and the time for challenging electors had passed. Trump’s electors would misrepresent themselves as actual electors, which they were not.

As Just Security founder Ryan Goodman observed on X, formerly known as Twitter, in a dispute over whether Trump attorney John Eastman’s writings were protected by attorney-client privilege, U.S. District Judge David Carter found that one of Chesebro’s memos likely furthered federal crimes. Goodman also cited a Chesebro email in which the latter concedes he modeled the phony-elector slate on real Georgia elector documents.

What was Chesebro thinking? Well, Chesebro has arrogantly asserted that he has nothing to worry about because he was just rendering ordinary legal advice. But when lawyers help plot illegal gambits and then help implement them, they cross over from lawyer to defendant. (The fraud-crime exception pierces the attorney-client veil so lawyers cannot shield their clients from criminal liability by joining in criminality with them!)

What might explain Chesebro’s predilection for wild schemes? Legal analyst Jeffrey Toobin did a deep dive into Chesebro’s legal background and training and found a Chesebro colleague who recalled: “Ken gets so fascinated with ideas and arguments, and if it’s something novel, he liked it better. … The practical implications were always less important to him.” In other words, as Tribe remarked, Chesebro lacks good judgment.

Now, sooner than anyone imagined, and thanks to Chesebro, Willis could well get a chance to show the whole country the criminal enterprise that Trump allegedly directed.