A Harvard Law Grad Known as ‘The Cheese’ Serves Up an Ingenious Defense for Trump in Georgia

One of the former president’s lawyers moves to quash charges on the basis of a fine-grained textual reading, but could it be too clever by half?

AP/Evan Vucci, file
President Trump at Washington, January 6, 2021. AP/Evan Vucci, file

The motion in state court by one of President Trump’s attorneys, Kenneth Chesebro, to quash two of the charges against him handed up in Georgia could provide a preview of the former president’s strategy to avoid a sentence to be served at Fulton County Jail.

While Messrs. Trump and Chesebro are both charged with counts other than the two that the latter seeks to quash, they are jointly accused of perpetrating  “conspiracy to commit the offense of false statements and writings.” A victory for Mr. Chesebro could make Mr. Trump’s case considerably easier.  

Mr. Chesebro, known to his Harvard Law classmates as “The Cheese,” has exercised his statutory right to a speedy trial, meaning that his case will be heard alongside that of another attorney, Sidney Powell, at the end of next month. Now, he comes to argue that some of those charges should not reach a jury.

The onetime liberal lion — he worked on Vice President Gore’s team in the wake of the 2000 presidential election — stands accused of helping to formulate and execute the “alternate elector” scheme, whereby a second slate of electors would be named in states won by President Biden. These alternatives would instead cast their votes for Mr. Trump. The plan foundered when Vice President Pence demurred from participating.

District Attorney Fani Willis of Fulton County, who is prosecuting the case against Mr. Chesebro and 18 others, argues that the alternate electors were not “duly elected and qualified” as the law requires, and thus the certifications they sent to the archivist of the United States and the Georgia governor are illegal under Peach Tree State law. The charge is straightforward, but Mr. Chesebro has come up with an innovative defense.    

Ms. Willis argues that the alternative electors lied when they put their signatures on the forms that read, “WE, THE UNDERSIGNED, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia, do hereby certify the following ….”

Mr. Chesebro, though, asserts that the prosecutor has not read closely enough. In a Talmudic twist, he writes that the “Republican presidential electors were qualified and elected by the Republican Party,” even if they were not ruled kosher by state or federal authorities. The word “certified” does not appear in the declaration, even though it makes it into the charge, a discrepancy that could amount to a defense. 

Then there are statements on the record, Mr. Chesebro observes, where Georgia’s 16 alternate electors — three of whom were charged by Ms. Willis — hedged their bets. Two electors, David Shafer and Shawn Still, noted that the scheme was meant not to overturn the election results but instead to “preserve any potential victory that may transpire through litigation.” Mr. Shafer added a tweet that the electors were acting “in a contingent capacity.”

Mr. Chesebro also ventures a second argument for why the elector scheme should not be grist for Ms. Willis’s prosecutorial mill. The relevant statute mandates that the alleged false statements and writing occur “in a matter within the jurisdiction of [a Georgia] department or agency.” This means that the deception must land in Georgia, not to authorities farther afield. 

Mr. Chesebro observes that under the Electoral Count Act, after the deadline for states to certify their results — December 8, in 2020 —  “neither the Governor nor the Georgia Secretary of State had the authority to act on the statements” within the documents under scrutiny.” Instead, “only Congress had the authority to act.”

Paradoxically, then, Mr. Chesebro’s path to avoid conviction could depend on a judge finding that his plan could never have worked in the first instance, because Georgia’s officials were impotent to change the outcome, anyway. That could be a blow to Mr. Chesebro’s pride, but a boon to his liberty.

The New York Sun

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