The arraignment date is approaching for 16 Republicans charged with felonies for allegedly trying to swing Michigan’s electoral college votes from the rightful winner of the 2020 election, President Joe Biden.
Michigan Public Radio’s Rick Pluta and Colin Jackson spoke to some former prosecutors to help break down the case and where things go from here.
Conversation Transcript
Megan Schellong: The arraignment date is approaching for 16 Republicans charged with felonies for allegedly trying to swing Michigan’s electoral college votes from the rightful winner of the 2020 election, President Joe Biden.
Rick Pluta and Colin Jackson and some former prosecutors are here to help break down the case and where things go from here.
Colin Jackson: Hi Rick.
Rick Pluta: Hi Colin. So, let’s briefly catch people up on what happened.
Jackson: This goes back to December [of 2020], when people on the Republican slate of presidential electors presented themselves at the state Capitol to cast their votes for Donald Trump.
Pluta: Who had lost Michigan, and not by a little.
Jackson: Right. More than 150,000 votes. So, they were turned away, but they also allegedly signed certificates and sent them to the National Archives and Congress purporting that they were the official electors and these were their official votes for president.
Pluta: The alleged objective being that then-Vice President Pence would accept the alternative slate of Michigan electors as part of a scheme to hand the presidency to Donald Trump.
Jackson: Here’s how Michigan Attorney General Dana Nessel described it:
They carried out these actions with the hope and belief that the electoral votes of Michigan's 2020 election would be awarded to the candidate of their choosing instead of the candidate that Michigan voters actually chose.Michigan Attorney General Dana Nessel
Dana Nessel: That was a lie. They weren’t the duly elected and qualified electors, and each of the defendants knew it. They carried out these actions with the hope and belief that the electoral votes of Michigan's 2020 election would be awarded to the candidate of their choosing instead of the candidate that Michigan voters actually chose.
Jackson: Most of the charges deal with forgery. There's forgery itself, election law forgery, and there's something called uttering and publishing which is essentially a specific type of forgery.
Pluta: These charges are not complicated. The prosecutors are saying that this alleged effort to steal an election is, legally speaking, a lot like passing bad checks or forging someone’s signature on a contract.
Jackson: Former U.S. Attorney Barbara McQuade who’s now a University of Michigan law professor put it this way:
Barbara McQuade: It's an unusual factual situation, and so, it is also an unusual application of these statutes. But I suppose in the absence of some other statutes that fits this crime, it is perhaps the best way to address the harm.
Jackson: The harm being this effort to overturn the will of the majority of Michigan voters.
Pluta: So, let’s get back to the nature of these charges. This is Matthew Schneider who is also a former U.S. attorney and a former Michigan assistant attorney general.
Matthew Schneider: People are thinking this is all about election law, but the charges that are brought are really those common law, statutory basic charges of forgery and uttering and publishing.
Pluta: These are cases that prosecutors are used to compiling and arguing in court, right down to the jury instructions. So Colin, what do we know about what we might expect of defense cases?
Jackson: Some people say they were duped into signing the documents. Others that they were only signaling they were ready in case the election results were overturned in court. Some pleaded the fifth when they were called to testify before Congress.
Pluta: Which could mean they’re betting the prosecution won’t be able to prove intent. Which is why it would be useful for prosecutors to have testimony from someone who was in the room where the alleged conspiracy allegedly occurred. So, let’s turn again to Matthew Schneider who says conspiracy cases tend to play out in a particular way.
16 defendants have been charged in this case, in a conspiracy. The odds are better than not that at least one of those 16 people will plead guilty and cooperate with the government, and I say that because that’s usually how it takes place in a conspiracy case.Former U.S. attorney Matthew Schneider
Schneider: 16 defendants have been charged in this case, in a conspiracy. The odds are better than not that at least one of those 16 people will plead guilty and cooperate with the government, and I say that because that’s usually how it takes place in a conspiracy case.
Jackson: We should mention Schneider was a Republican appointee as a U.S. attorney.
Pluta: A Trump, appointee, in fact.
Jackson: So Rick, what might prosecutors be worried about?
Pluta: Well, a lot of process motions that could delay the case going to trial and mess up the prosecution’s plans to keep this a simple forgery case that happens to be political. There’s also the risk of jury nullification.
Jackson: Which is?
Pluta: When a jury decides, even if the prosecution meets its burden, that they just don’t like the law or how it’s being applied. Jurors basically on their own decide a defendant is in fact, well, guilty as charged, but they don’t like the charges. It’s not a legal defense, per se, but it does happen.
Jackson: And if this is all playing out as Donald Trump is also going on trial in New York, that’s going to make it pretty much impossible to keep politics out of it.
Pluta: Agreed. We’ll see what happens at the arraignment, but the political questions are going to have to be managed by prosecutors. They can’t be stopped at the courthouse door.
Schellong: Rick Pluta and Colin Jackson are reporters in Michigan Public Radio’s state Capitol bureau. The next hearings in the case are scheduled for August in Ingham County.